16-4146 

Konoplyankin v. Barr 

BIA 

Reid, IJ 

A206 471 637

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

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APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th day of September, two thousand 

nineteen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge,

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

Circuit Judges. 

_____________________________________ 

KIRILL NIKOLAYEVICH KONOPLYANKIN, 

 Petitioner, 

v. 16-4146 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Alexander Almonte, Almonte Law 

 Firm, P.C., Brooklyn, NY. 

FOR RESPONDENT: Joseph H. Hunt, Assistant 

Attorney General; Stephen J. 

Flynn, Assistant Director; James 

A. Hurley, Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Civil Division, Washington, DC. 
2 

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is GRANTED in part and DENIED in part. 

 Petitioner Kirill Nikolayevich Konoplyankin, a native of 

the former Union of Soviet Socialist Republics and a citizen 

of Kazakhstan, seeks review of a November 16, 2016, decision 

of the BIA that affirmed a November 23, 2015, decision of an 

Immigration Judge (“IJ”) denying asylum, withholding of 

removal, and relief under the Convention Against Torture 

(“CAT”), and denied his motion to remand. In re Kirill 

Nikolayevich Konoplyankin, No. A206 471 637 (B.I.A. Nov. 16, 

2016), aff’g No. A206 471 637 (Immig. Ct. Batavia Nov. 23, 

2015). We assume the parties’ familiarity with the 

underlying facts and procedural history in this case. 

 Under the circumstances of this case, we have reviewed 

the decision of the IJ as supplemented by the BIA. See Yan 

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 

applicable standards of review are well established. See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 

510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of Justice, 

421 F.3d 149, 156 (2d Cir. 2005). 
3 

 As an initial matter, Konoplyankin does not challenge 

the agency’s pretermission of his asylum application as 

untimely or the denial of CAT relief on the merits and thus 

we do not consider those claims. See Yueqing Zhang v. 

Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) 

(noting that petitioner abandons issues not raised in his 

briefs). However, as discussed below, we grant the petition 

and remand because the agency erred in its analysis of 

withholding of removal. 

 To establish eligibility for withholding of removal, “the 

applicant must establish that race, religion, nationality, 

membership in a particular social group, or political opinion 

was or will be at least one central reason for persecuting 

the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see 8 U.S.C. 

§ 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341, 348 

(B.I.A. 2010). Withholding of removal “may be granted where 

there is more than one motive for mistreatment, as long as at 

least one central reason for the mistreatment is on account 

of a protected ground.” Acharya v. Holder, 761 F.3d 289, 297 

(2d Cir. 2014) (internal quotation marks and citations 

omitted). In evaluating a past persecution claim, the agency 

must consider the harm suffered in the aggregate. Poradisova 
4 

v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005). “[P]rivate 

acts may be persecution if the government has proved unwilling 

to control such actions.” Ivanishvili v. U.S. Dep’t of 

Justice, 433 F.3d 332, 342 (2d Cir. 2006). 

 Konoplyankin testified to past persecution and a fear of 

future persecution in Kazakhstan on account of his Russian 

ethnicity based on the following incidents. In school 

Konoplyankin grew up being bullied because he only spoke 

Russian and not Kazakh. In 2007, after Konoplyankin pushed 

one of his sister’s schoolmates who had just pushed and hurt 

his sister, four of her schoolmates beat and kicked him, 

called him a “Russian dog,” and told him to leave Kazakhstan. 

Konoplyankin suffered a concussion, but when he reported the 

incident to police, they threatened him with jail if he did 

not withdraw his complaint. The following year, three people 

attacked him and stole his backpack, but a policeman stopped 

him from chasing his attackers, put his arm behind his back 

dislocating his shoulder, pushed him into the police car, and 

held him in jail for two days. In 2010, two policemen stopped 

Konoplyankin and a friend, put their arms behind their backs, 

searched them for contraband, told his friend to shut up, and 

called his friend a “Russian bitch,” before taking them to a 
5 

police station where they were handcuffed in a room for two 

hours and then questioned by someone Konoplyankin believed 

was probably a supervisor who commented on the fact that they 

did not speak Kazakh, referred to them as parasites, and said 

they were the main problem in society. The police detained 

them overnight before letting them go for lack of evidence of 

the robbery they claimed to have suspected them of committing. 

Later that same year, two men beat Konoplyankin outside a 

nightclub because he did not speak Kazakh. 

 The IJ acknowledged that the country reports show “a 

great number of conflicts and hostilities between the Russian 

speakers and the Kazakh speakers in Kazakhstan,” but found 

that Konoplyankin’s “incidents . . . to a large degree seem 

to relate to criminal offenses and the police response to 

criminal offenses where they were looking to find the 

perpetrators.” The IJ thus concluded that Konoplyankin 

failed to demonstrate that the incidents he suffered were 

“more likely than not based upon his Russian ethnicity.” The 

IJ applied an incorrect standard by requiring Konoplyankin to 

show that the harm he suffered was “more likely than not” on 

account of a protected ground when he was required to show 

“only that the harm was motivated, in part, by an actual or 
6 

imputed protected ground.” Aliyev v. Mukasey, 549 F.3d 111, 

116 (2d Cir. 2008) (internal quotation marks omitted). 

Furthermore, rather than consider all of these incidents 

cumulatively as required, see Poradisova, 420 F.3d at 79-80, 

the IJ declined to address incidents that were “normal, or at 

least threats or discrimination.” The IJ also erroneously 

speculated that police were involved in legitimate law 

enforcement efforts when they attacked and detained 

Konoplyankin even though Konoplyankin’s testimony suggests 

that police claimed to investigate a robbery as a pretext for 

targeting him. Cf. Jin Jin Long v. Holder, 620 F.3d 162, 166 

(2d Cir. 2010) (“[P]rosecution that is pretext for political 

persecution is not on account of law enforcement.”). And the 

IJ failed to address whether police had a mixed motive in 

targeting Konoplyankin. See Acharya, 761 F.3d at 296-97. 

The BIA did not correct the IJ’s errors. 

 Accordingly, we find that the agency erred in its denial 

of withholding of removal, and grant Konoplyankin’s petition 

for review to this extent. 

 We find no error in the BIA’s decision declining to 

remand. Konoplyankin did not move to remand as required by 

regulation. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party 
7 

asserting that the Board cannot properly resolve an appeal 

without further factfinding must file a motion for remand.”); 

see also Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 

1984) (recognizing that, as an appellate body, the BIA may 

decline to review evidence proffered for the first time on 

appeal). Nor did the BIA abuse its discretion in declining 

to remand because most of the evidence had either been 

submitted to the IJ or was previously available at that time 

and thus did not satisfy the requirement that the movant 

submit evidence that was not available at the time of his 

hearing. See 8 C.F.R. § 1003.2(c)(1), (4); Li Yong Cao, 421 

F.3d at 156, 158 (providing that a motion to remand “is held 

to the substantive requirements of a motion to reopen” and 

that a movant must “present material, previously unavailable 

evidence”). 

 For the foregoing reasons, the petition for review is 

GRANTED in part and remanded to the BIA and DENIED in part. 

FOR THE COURT: 

Catherine O=Hagan Wolfe 

Clerk of Court