2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-7-2014

Mark Yakubov v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1537

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1537

___________

MARK YAKUBOV,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A071-316-352)

Immigration Judge: Honorable Leo A. Finston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 19, 2014

Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

(Opinion filed: October 7, 2014)

___________

OPINION

___________

PER CURIAM

Mark Yakubov petitions for review of the Board of Immigration Appeals’ (“BIA”) 

final order of removal. The BIA dismissed Yakubov’s appeal from the Immigration 

Judge’s (“IJ”) order that he be removed to Israel or, in the alternative, to Russia. We will 

grant the petition for review and vacate the BIA’s ruling that Yakubov is not entitled to 
2

deferral of removal from Russia on the merits. As we shall explain, our ruling does not 

disturb the IJ’s order that Yakubov be removed to Israel and the Government is free to 

effectuate that order.

I.

Yakubov, a Jewish citizen of Russia, was admitted to the United States as a

refugee in 1995 and later adjusted his status to lawful permanent resident. Yakubov’s 

admission followed his severe beating by three policemen in the Russian Republic of 

Dagestan that left him in a coma for four days and the hospital for one month. Yakubov 

attributes the beating to anti-Semitism. 

In 2010, Yakubov pleaded guilty to attempted burglary in violation of N.J. Stat. 

Ann. §§ 2C:5-1 and 2C:18-2, and to unlawful possession of a handgun in violation of 

N.J. Stat. Ann. § 2C:39-5(b). The trial court sentenced him to four to seven years in 

prison. The Government ultimately charged him as removable for having been convicted 

of (1) a firearm offense, see 8 U.S.C. § 1227(a)(2)(C), and (2) the aggravated felony of 

attempting to commit a burglary, see 8 U.S.C. §§ 1101(a)(43)(G), (U), 1227(a)(2)(A)(iii). 

Yakubov conceded removability but applied for asylum, withholding of removal and 

relief under the Convention Against Torture (“CAT”) on the ground that he faces 

persecution and torture on account of his religion if removed to Russia.

The IJ found Yakubov’s testimony credible but denied his application and ordered 
3

his removal to Israel or, alternatively, to Russia if Israel does not accept him.1 In 

particular, the IJ concluded that Yakubov had been convicted of an aggravated felony and 

a “particularly serious crime” that renders him ineligible for asylum or withholding of 

removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). That ruling—which 

Yakubov did not challenge before the BIA and has not challenged on review—left 

deferral of removal under the CAT as Yakubov’s only potential form of relief. The IJ 

denied deferral of removal on the merits, and the BIA dismissed Yakubov’s appeal on the 

merits as well. Yakubov petitions for review.

II.

Yakubov has never contested his removability per se or claimed that he faces any 

mistreatment if removed to Israel. He also did not seek any relief from removal to Israel 

before the BIA and has not sought any such relief on review. Instead, his sole challenge 

is to the Agency’s alternative order of removal to Russia. Although our jurisdiction over 

final orders of removal under 8 U.S.C. § 1252(a)(1) generally gives us jurisdiction to 

review alternative orders of removal, we conclude that Yakubov’s challenge is 

premature.

Deferral of removal may be granted only if the applicant “establish[es] that it is 

more likely than not that he or she would be tortured if removed to the proposed country 

 

1 Yakubov requested removal to Israel in the event the IJ found him removable and 

testified that, although he has never resided in Israel, he has “a lot of relatives there.”
4

of removal.” 8 C.F.R. § 1208.16(c)(2) (emphasis added); see also 8 C.F.R. § 1208.17(a) 

(requiring deferral of removal when an alien satisfies this standard but is ineligible for 

withholding). In this case, Israel is “the proposed country of removal,” while Russia is 

merely an alternative proposed country of removal. See 8 C.F.R. § 1240.10(f) 

(contrasting “the country” of removal designated by the IJ with “countries in the 

alternative”). “Under the plain wording of 8 C.F.R. § 1208.16, an applicant is not 

entitled to adjudication of an application for withholding of removal to a country that 

nobody is trying to send them to.” Su Hwa She v. Holder, 629 F.3d 958, 965 (9th Cir. 

2010). 

There is no indication of record that the Government is or may become unable to 

remove Yakubov to Israel and, although we express no opinion on the issue, we note that 

Israel generally permits Jews to settle there under its Law of Return. See Fox v. Clinton, 

684 F.3d 67, 70-71 (D.C. Cir. 2012) (citing Law of Return, 5710-1950, 4 LSI 114 §§ 1-3 

(1949-1950), as amended by Law of Return (Amendment 5714-1954)). Thus, Yakubov’s 

claim for deferral will not become ripe unless and until the Government’s efforts to 

remove him to Israel prove unsuccessful. See Su Hwa She, 629 F.3d at 956 & n.7.

For this reason, we will vacate the BIA’s order to the extent that it affirmed the 

IJ’s denial of Yakubov’s claim for deferral of removal to Russia on the merits and will 

remand for the BIA to dismiss his appeal instead on the ground that Russia is not 
5

presently “the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).2 Because 

Yakubov did not challenge his removal to Israel before the BIA, there is no basis for the 

BIA to engage in any further proceedings at this time. Thus, our ruling does not disturb 

Yakubov’s order of removal to Israel. That order remains in effect and the Government 

is free to effectuate it. If the Government is unable to remove Yakubov to Israel, then 

Yakubov may file a motion to reopen with the BIA seeking a ruling on the merits of his 

claim for deferral of removal to Russia at that time. Cf. Su Hwa She, 629 F.3d at 961, 

965. Yakubov’s unsupported request in his reply brief for release on bail is denied.

 

2 Although the IJ’s resolution of this claim on the merits was premature for the same 

reason the BIA’s resolution was premature, it is neither necessary nor appropriate for us 

to direct the BIA to remand to the IJ for a similar disposition at this time. The IJ has 

developed a factual record on this claim and, if consideration of this claim on the merits 

becomes appropriate in the future, the BIA can decide in its discretion whether a remand 

to the IJ for further factfinding is warranted.