Bakhram Azizov v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2023
• Docket: 21-70301
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BAKHRAM AZIZOV, No. 21-70301

Petitioner, Agency No. A201-564-738

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 10, 2023 San Francisco, California

Before: OWENS and MILLER, Circuit Judges, and EZRA,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David Alan Ezra, United States District Judge for the District of Hawaii, sitting by designation. Bakhram Azizov (“Petitioner”), a native and citizen of Kyrgyzstan, petitions

for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

appeal of an Immigration Judge’s (the “IJ”) denial of Petitioner’s applications for

asylum, withholding of removal, and Convention Against Torture (“CAT”)

protection based on racial and political persecution he allegedly suffered in his

home country. We grant the petition for review.

We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA agrees

with the IJ decision and also adds its own reasoning, we review the decision of the

BIA and those parts of the IJ’s decision upon which it relies. Duran-Rodriguez v.

Barr, 918 F.3d 1025, 1027-28 (9th Cir. 2019). We review the decision that an

alien has not established eligibility for asylum, withholding of removal, or CAT

protection for substantial evidence. Id. at 1028. Additionally, we review the

agency’s “factual findings, including adverse credibility determinations,” for

substantial evidence. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). Under

the deferential substantial evidence standard, unless the evidence compels a

conclusion otherwise, the Panel must uphold the agency’s decision. Duran-

Rodriguez, 913 F.3d at 1028. “While [the substantial evidence] standard is

deferential, deference does not mean blindness.” Parada v. Sessions, 902 F.3d

901, 908-09 (9th Cir. 2018) (citation and internal quotation marks omitted).

2 1. Petitioner fled Kyrgyzstan on March 24, 2019, after multiple incidents of

violence he contends were based on his Uyghur ethnicity and political views.

Petitioner first argues that the BIA erred in denying his application for asylum. To

prove eligibility for asylum or withholding of removal, Petitioner was required to

prove that “he has suffered past persecution or has a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Duran-Rodriguez, 918 F.3d at 1028. Petitioner

takes issue with the BIA’s affirmation of the IJ’s finding that it was implausible

that Petitioner suffered “on account of” his race or political affiliation because the

IJ believed he was compensated for his hangar for an amount greater than its value.

We agree with Petitioner. The evidence indicates that Petitioner was never fully

compensated after his hangar and equipment were taken from him. In fact,

Petitioner testified he that was still trying to recover what he was owed when he

fled Kyrgyzstan in March 2019.

Additionally, the IJ and BIA appeared to exclude from their analysis the

suffering Petitioner experienced by police officers in 2017, and the IJ confused the

timing of Petitioner’s alleged detentions and beatings. Further, despite Petitioner

alleging that his Uyghur ethnicity was mentioned in nearly all his violent

encounters, neither the IJ nor the BIA acknowledged this fact in their decisions. In

fact, contrary to the BIA’s finding that Petitioner failed to show any “motive, or

3 underlying cause for any of the alleged harm or threats that did not arise from . . . a

personal dispute, related to his marketplace rental,” the record reveals many

indications that Petitioner’s ethnicity was at least one reason he was persecuted.

While the substantial evidence standard requires deference to the BIA’s

decision, deference is not required where the BIA clearly ignores evidence. See,

e.g., Parada, 902 F.3d at 909 (finding that substantial evidence did not support the

BIA’s determination that the petitioner had not suffered persecution because the

BIA mischaracterized and ignored evidence of the murder, beatings, death threats,

and murder he had either experienced or witnessed). Here, the IJ specifically

relied on an erroneous belief that Petitioner was fully compensated for the loss of

his hangar and other factual inaccuracies in finding an insufficient connection

between a protected ground and the harm suffered—and the BIA adopted and

affirmed those findings. The BIA’s decision also suggests that it failed to consider

evidence of the derogatory comments Salymbekov, the police, and others made

about Petitioner’s Uyghur ethnicity. For these reasons, we remand the Petitioner’s

asylum application for reconsideration.1

1 Petitioner also argues the BIA erred by failing to consider mixed-motives in assessing whether Petitioner’s political views or Uyghur ethnicity were “at least one central reason” for any harm and failing to apply the “a reason” nexus standard to his withholding claim. While it seems the IJ applied the correct legal standard in analyzing Petitioner’s withholding of removal application, the BIA’s decision on withholding of removal is still flawed given the reasons described above.

4 2. In denying Petitioner’s application for withholding of removal, the IJ

referred back to her asylum findings, stating that because Petitioner failed to meet

the lower burden of proof for asylum, he necessarily failed to meet the more

stringent standard for withholding of removal. The BIA adopted only the IJ’s

decision “as it pertains to a nexus to a protected ground.” But the IJ made no

findings as to a nexus; nor did the BIA provide meaningful analysis itself.

Moreover, because the IJ’s analysis of Petitioner’s application for withholding of

removal incorporates her asylum analysis, it is tainted with the same factual

inaccuracies described above. Finally, as explained above, there is ample evidence

that Petitioner’s ethnicity was at least a reason for the persecution he claims he

suffered. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017).

Accordingly, we remand the petition as to withholding of removal for

reconsideration.

3. Lastly, Petitioner argues that the BIA erred by affirming the IJ’s finding

that Petitioner was not “more likely than not” to be tortured by or with the

acquiescence of a public official or government. As explained above, the IJ seems

to have overlooked the fact that Petitioner was allegedly detained and beaten by

police officers in 2017 and misstates the timing of the detention and beating in

2015. The BIA’s statement of the facts and incorporation of the IJ’s flawed factual

findings indicates it was also mistaken about the series of events. While the BIA is

5 not required to discuss every piece of evidence submitted, a decision cannot stand

where “there is any indication that the BIA did not consider all of the evidence

before it,” such as “misstating the record and failing to mention highly probative or

potentially dispositive evidence.” Cole, 659 F.3d at 771-72. Here, because both

the IJ and the BIA mischaracterized and failed to consider key pieces of evidence

in denying Petitioner’s application, we remand Petitioner’s CAT protection

application for reconsideration.

PETITION GRANTED AND REMANDED. The remand automatically

stays the order of removal, so the motion for a stay of removal (Dkt. No. 1) is

denied as unnecessary.