NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELDAR GAFUROV; LEILA No. 24-6466 GAFUROVA; S.G.; I.G., Agency Nos. A246-713-805 Petitioners, A246-713-804 A246-713-803 v. A246-713-806 TODD BLANCHE, Acting Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 11, 2026 Portland, Oregon
Before: COLLINS and LEE, Circuit Judges, and FITZWATER, District Judge.**
Eldar Gafurov,1 a Meskhetian Turk and citizen of Russia, seeks review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal of an Immigration
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 1 As the BIA noted, only Eldar Gafurov filed an application for relief, but his wife and children are derivative beneficiaries of his asylum application. See Oscar v. Bondi, 135 F.4th 777, 779 n.1 (9th Cir. 2025). Judge’s (IJ) denial of his claims for asylum, withholding of removal, and Convention
Against Torture (CAT) protection. He also challenges the BIA’s denial of his due
process claim. We review “legal and constitutional questions de novo,” Gonzalez-
Lara v. Garland, 104 F.4th 1109, 1111 (9th Cir. 2024), and “both [the agency’s]
underlying factual findings and [its] application of the INA to those findings” for
substantial evidence, Urias-Orellana v. Bondi, 607 U.S. 537, 545 (2026); see Davila
v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). We have jurisdiction under 8 U.S.C.
§ 1252. We grant in part and deny in part the petition and remand to the BIA.
1. Withholding and CAT. Gafurov waived his challenges to the agency’s
denial of withholding and CAT relief by failing to “specifically and distinctly
argue[]” them in his opening brief. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080
(9th Cir. 2013) (citation omitted). It is not enough, as Gafurov argues, that his
withholding claim is “derivative” of the asylum claim. See Rizk v. Holder, 629 F.3d
1083, 1091 n.3 (9th Cir. 2011), overruled on other grounds by Alam v. Garland, 11
F.4th 1133 (9th Cir. 2021) (en banc).
2. Due process. Gafurov also failed to exhaust two of his three due process
claims—namely, that the interpreter caused miscommunications and that the IJ
improperly limited Gafurov’s testimony and dismissed key incidents without full
consideration. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023)
(“Exhaustion requires a . . . claim to the court on appeal to have first been raised in
2 the administrative proceedings below.” (citation omitted)); see also Garcia-Ramirez
v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (“[D]ue process claims alleging only
procedural errors within the BIA’s power to redress are [not] exempt from [the]
administrative exhaustion requirement.” (cleaned up)). A review of the record
confirms that the only due process claim pressed to the BIA was the IJ’s lack of
access to the record during the hearing (which we will address next).
In asserting that the IJ’s lack of access to the record during the merits hearing
resulted in a due process violation, Gafurov claims prejudice only with respect to the
IJ’s timeline of the dates of his return to Russia in November 2022 and the Russian
government’s efforts to conscript him. Lacsina Pangilinan v. Holder, 568 F.3d 708,
709 (9th Cir. 2009) (explaining that petitioner must show prejudice—that the
outcome may have been affected—to succeed on a due process claim). Given that,
as explained below, we remand to the agency for further consideration with respect
to Gafurov’s claim of a well-founded fear of future persecution based on
discriminatory conscription, this theory of prejudice, in its current posture, is moot.
We therefore have no occasion to address this third due process claim.
3. Asylum—past persecution. Substantial evidence supports the agency’s
conclusion that Gafurov has not suffered past persecution. See Urias-Orellana, 607
U.S. at 551 (holding that “the persecution determination” is reviewed for substantial
evidence). While Gafurov provided testimony and written declarations describing
3 several incidents in which he or his family suffered discrimination, these incidents
do not rise to the level of severity required to compel a finding of past persecution.
See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (explaining that
persecution is an “extreme concept” that “does not include every sort of treatment
our society regards as offensive.” (citation omitted)); Ghaly v. I.N.S., 58 F.3d 1425,
1431 (9th Cir. 1995) (emphasizing that discrimination alone does not ordinarily
amount to persecution within the meaning of the INA). The relevant discriminatory
acts were carried out sporadically over roughly three decades (often with multi-year
gaps between them), committed by various individuals across disparate locations,
and never resulted in severe injuries. See, e.g., Halim v. Holder, 590 F.3d 971, 975–
76 (9th Cir. 2009) (concluding that “five instances of mistreatment,” including
bullying, an unjustified stop and detainment “for a couple of days” by police, being
beaten by a mob, and one instance of being denied access to medical treatment did
not compel a finding of past persecution).
Gafurov’s contention that the BIA incorrectly viewed each act individually
rather than cumulatively is belied by the record. The BIA referenced the correct
standard and then applied that standard. This is sufficient because we generally
accept that there were no legal errors “if the BIA expressly cited and applied the
relevant caselaw in rendering its decision.” Park v. Garland, 72 F.4th 965, 976 (9th
Cir. 2023) (citation omitted) (alterations adopted).
4 4. Asylum—future persecution. The BIA, however, failed to address
whether Gafurov established a well-founded fear of future persecution based on his
claim that Russia disproportionately conscripts ethnic minorities (such as
Meskhetian Turks like himself) for its war against Ukraine.2
We have stated that “target[ing] [a person] for conscription,” or imposing
corresponding “punishment” for evading conscription, “on account of . . . [a]
protected ground,” may constitute persecution under the INA. Movsisian v. Ashcroft,
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELDAR GAFUROV; LEILA No. 24-6466 GAFUROVA; S.G.; I.G., Agency Nos. A246-713-805 Petitioners, A246-713-804 A246-713-803 v. A246-713-806 TODD BLANCHE, Acting Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 11, 2026 Portland, Oregon
Before: COLLINS and LEE, Circuit Judges, and FITZWATER, District Judge.**
Eldar Gafurov,1 a Meskhetian Turk and citizen of Russia, seeks review of the
Board of Immigration Appeals’ (BIA) dismissal of his appeal of an Immigration
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 1 As the BIA noted, only Eldar Gafurov filed an application for relief, but his wife and children are derivative beneficiaries of his asylum application. See Oscar v. Bondi, 135 F.4th 777, 779 n.1 (9th Cir. 2025). Judge’s (IJ) denial of his claims for asylum, withholding of removal, and Convention
Against Torture (CAT) protection. He also challenges the BIA’s denial of his due
process claim. We review “legal and constitutional questions de novo,” Gonzalez-
Lara v. Garland, 104 F.4th 1109, 1111 (9th Cir. 2024), and “both [the agency’s]
underlying factual findings and [its] application of the INA to those findings” for
substantial evidence, Urias-Orellana v. Bondi, 607 U.S. 537, 545 (2026); see Davila
v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). We have jurisdiction under 8 U.S.C.
§ 1252. We grant in part and deny in part the petition and remand to the BIA.
1. Withholding and CAT. Gafurov waived his challenges to the agency’s
denial of withholding and CAT relief by failing to “specifically and distinctly
argue[]” them in his opening brief. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080
(9th Cir. 2013) (citation omitted). It is not enough, as Gafurov argues, that his
withholding claim is “derivative” of the asylum claim. See Rizk v. Holder, 629 F.3d
1083, 1091 n.3 (9th Cir. 2011), overruled on other grounds by Alam v. Garland, 11
F.4th 1133 (9th Cir. 2021) (en banc).
2. Due process. Gafurov also failed to exhaust two of his three due process
claims—namely, that the interpreter caused miscommunications and that the IJ
improperly limited Gafurov’s testimony and dismissed key incidents without full
consideration. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023)
(“Exhaustion requires a . . . claim to the court on appeal to have first been raised in
2 the administrative proceedings below.” (citation omitted)); see also Garcia-Ramirez
v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (“[D]ue process claims alleging only
procedural errors within the BIA’s power to redress are [not] exempt from [the]
administrative exhaustion requirement.” (cleaned up)). A review of the record
confirms that the only due process claim pressed to the BIA was the IJ’s lack of
access to the record during the hearing (which we will address next).
In asserting that the IJ’s lack of access to the record during the merits hearing
resulted in a due process violation, Gafurov claims prejudice only with respect to the
IJ’s timeline of the dates of his return to Russia in November 2022 and the Russian
government’s efforts to conscript him. Lacsina Pangilinan v. Holder, 568 F.3d 708,
709 (9th Cir. 2009) (explaining that petitioner must show prejudice—that the
outcome may have been affected—to succeed on a due process claim). Given that,
as explained below, we remand to the agency for further consideration with respect
to Gafurov’s claim of a well-founded fear of future persecution based on
discriminatory conscription, this theory of prejudice, in its current posture, is moot.
We therefore have no occasion to address this third due process claim.
3. Asylum—past persecution. Substantial evidence supports the agency’s
conclusion that Gafurov has not suffered past persecution. See Urias-Orellana, 607
U.S. at 551 (holding that “the persecution determination” is reviewed for substantial
evidence). While Gafurov provided testimony and written declarations describing
3 several incidents in which he or his family suffered discrimination, these incidents
do not rise to the level of severity required to compel a finding of past persecution.
See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (explaining that
persecution is an “extreme concept” that “does not include every sort of treatment
our society regards as offensive.” (citation omitted)); Ghaly v. I.N.S., 58 F.3d 1425,
1431 (9th Cir. 1995) (emphasizing that discrimination alone does not ordinarily
amount to persecution within the meaning of the INA). The relevant discriminatory
acts were carried out sporadically over roughly three decades (often with multi-year
gaps between them), committed by various individuals across disparate locations,
and never resulted in severe injuries. See, e.g., Halim v. Holder, 590 F.3d 971, 975–
76 (9th Cir. 2009) (concluding that “five instances of mistreatment,” including
bullying, an unjustified stop and detainment “for a couple of days” by police, being
beaten by a mob, and one instance of being denied access to medical treatment did
not compel a finding of past persecution).
Gafurov’s contention that the BIA incorrectly viewed each act individually
rather than cumulatively is belied by the record. The BIA referenced the correct
standard and then applied that standard. This is sufficient because we generally
accept that there were no legal errors “if the BIA expressly cited and applied the
relevant caselaw in rendering its decision.” Park v. Garland, 72 F.4th 965, 976 (9th
Cir. 2023) (citation omitted) (alterations adopted).
4 4. Asylum—future persecution. The BIA, however, failed to address
whether Gafurov established a well-founded fear of future persecution based on his
claim that Russia disproportionately conscripts ethnic minorities (such as
Meskhetian Turks like himself) for its war against Ukraine.2
We have stated that “target[ing] [a person] for conscription,” or imposing
corresponding “punishment” for evading conscription, “on account of . . . [a]
protected ground,” may constitute persecution under the INA. Movsisian v. Ashcroft,
395 F.3d 1095, 1097 (9th Cir. 2005). The IJ’s decision expressly raised the issue of
discriminatory-conscription and therefore put the BIA on notice of it.3 Figueroa v.
Mukasey, 543 F.3d 487, 493 (9th Cir. 2008) (concluding that an issue was preserved
for the BIA’s review where an IJ’s decision addressed it) impliedly overruled on
other grounds in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc).
Gafurov then repeatedly pressed his discriminatory-conscription argument in his
appeal brief to the BIA, but the BIA failed to address it. We therefore remand for the
BIA to analyze whether Russia’s alleged targeting of ethnic minorities for
2 Evidence of country conditions shows that the Russian government “disproportionately mobilized members of non-Russian ethnic groups to fight in Russia’s war against Ukraine,” and Russian politician Dmitry Medvedev has publicly threatened draft evaders who fled the country, calling them “scoundrels” who should not be allowed back in and urging laws be enacted to punish them. 3 It is not clear from the record whether the petitioner expressly addressed this issue to the IJ, but the IJ sufficiently preserved the issue such that the BIA should have addressed it. 5 conscription establishes a well-founded fear of future persecution. See Brezilien v.
Holder, 593.3d 403, 412 (9th Cir. 2009) (noting that remand is appropriate where
the “BIA never addressed” a significant argument raised by the petitioner).
We, however, reject Gafurov’s alternative theory of future persecution based
on “a pattern or practice in his . . . country of nationality” of persecution against
disfavored groups. 8 C.F.R. § 1208.13(b)(2)(iii)(A). The agency acknowledged that
“there is a widespread pattern of discrimination against ethnic minorities and
Meskhetian Turks in Russia,” but concluded that this discrimination is not
sufficiently systematic to constitute persecution. The record does not compel a
contrary conclusion. Similar evidence of widespread discrimination has been
deemed insufficient to compel the conclusion that there exists a “pattern or practice”
of persecution in a given country. Cf. Wakkary v. Holder, 558 F.3d 1049, 1061 (9th
Cir. 2009) (“Although the record contains evidence of widespread anti-Chinese and
anti-Christian discrimination that affects a very large number of individuals, and
although it is clear that a certain portion of those individuals suffer treatment that
rises to the level of persecution, the record does not establish that the situation in
Indonesia is similar to the patterns or practices of persecution described in our prior
case law.” (emphasis in original))
DENIED IN PART AND GRANTED IN PART; REMANDED.