Kuznecovs v. Mukasey

271 F. App'x 5
Court of Appeals for the Second Circuit·Decided March 10, 2008·No. No. 07-1142-ag·Published

Opinion

SUMMARY ORDER

Petitioner Viktors Kuznecovs, a native of Khazakhstan who is currently stateless, seeks review of a February 22, 2007 order of the BIA affirming the November 22, 2005 decision of Immigration Judge (“IJ”) Philip J. Montante, Jr. denying Kuznecovs’ application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Viktors Kuznecovs, No. A 95 419 874 (B.I.A. Feb. 22, 2007), affg No. A 95 419 874 (Im-mig.Ct.Buffalo, Nov. 22, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

This Court has never held that a petitioner is limited to the “exact contours” of his argument to the agency. Gill v. INS, 420 F.3d 82, 85-86 (2d Cir.2005). On the contrary, this Court has held that section 1252(d)(1) does not prevent it from considering “specific, subsidiary legal arguments or arguments by extension,” even if those arguments were not presented below. Id.; see Restrepo v. McElroy, 369 F.3d 627, 633 n. 10 (2d Cir.2004). In determining which arguments constitute “issues,” which must be exhausted, and which constitute “subsidiary arguments,” which do not, this Court will examine whether an unexhausted argument “constitutes a ground, in and of itself, on which an IJ’s denial of [relief] may be based[.]” See Steevenez v. Gonzales, 476 F.3d 114, 117-118 (2d Cir.2007).

Here, Kuznecovs raised all of the issues he presents to this Court in his appeal to the BIA, with the exception of his assertion that the IJ erred by failing to consider the cumulative effect of the violence he suffered. However, this assertion is a subsidiary argument, rather than an unex-hausted claim, because Kuznecovs argued before BIA that the IJ erred by finding that he had not established that he suffered past persecution. Accordingly, we shall review the merits of his petition. See Steevenez, 476 F.3d at 117.

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Tao Jiang v. Gonzales, 500 F.3d 137, 140 (2nd Cir.2007).

[8]*8We find that the IJ did not violate Kuznecovs’ due process rights by failing to inform him of the one-year filing deadline for asylum applications. An IJ is required to inform an alien of his right to apply for asylum and withholding of removal if the alien expresses a fear of persecution or harm in a country where he might be returned. See 8 C.F.R. § 1240.11(c)(1). However, because there was no evidence demonstrating that the IJ was aware of Kuznecovs’ fear of returning to Latvia, the IJ did not violate his due process rights by failing to inform him of his right to apply for asylum. Although Kuznecovs’ asylum claim was time-barred, we may review his remaining claims for relief on the merits. See 8 U.S.C. Section 1158(a)(3); Joaquin Porras v. Gonzales, 435 F.3d 172, 180-81 (2d Cir.2006).

The IJ’s determination that Kuznecovs failed to establish past persecution was flawed because the record does not support his conclusion that Kuznecovs was a “victim of random violence.” In support of this finding, the IJ concluded that because the police claimed to have closed their investigation into his attack due to a lack of evidence, Kuznecovs’ persecutors were of “unknown origin.” However, the IJ failed to consider Kuznecovs’ credible testimony which indicated that the police closed their investigation because they were unwilling to assist him. See Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 341 (2d Cir.2006) (emphasizing that in rejecting an applicant’s claim, the IJ should “consider all the evidence in the record that has probative value”); JorgeTzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006) (holding that IJ’s failure to take the entire record into consideration was error).

Further, while the perpetrators of the various offenses against Kuznecovs and his family members were not identified, this Court has never imposed a requirement that a victim conclusively identify his persecutors. See Osorio v. INS, 18 F.3d 1017, 1023-25, 1031 (2d Cir.1994) (finding persecution on account of political opinion where petitioner received two anonymous death threats and several of his fellow union workers were attacked or killed by unidentified armed men).

The IJ also found that Kuznecovs was a victim of random violence because there was no nexus between the incidents he reported and the protected grounds for withholding of removal. See 8 U.S.C. § 1101(a)(42). To the contrary, Kuzne-covs’ testimony indicates that he and his family were subjected to repeated violent attacks and threats based on their Russian ethnicity and his participation in activities opposing Latvian nationalism.

In addition, the IJ and the BIA erroneously found that the incidents to which Kuznecovs testified were not “severe enough” to rise to the level of past persecution. In reaching this conclusion, the BIA failed to consider some of the events to which Kuznecovs testified, and the fact that both he and his son sought medical treatment for their injuries. See e.g., Gjolaj v. BCIS, 468 F.3d 140, 143 (2d Cir.2006) (holding that when determining whether an applicant has demonstrated persecution, the agency must view events cumulatively, rather than addressing the severity of each event in isolation). Additionally, the BIA did not address the fact that the incidents which Kuznecovs alleged occurred within a seventeen-month period of time, nor did the BIA adequately consider the effect of the incidents of persecution in the aggregate. See Manzur v. U.S. Dep’t of Homeland Security,

Kuznecovs v. Mukasey, 271 F. App'x 5 (2d Cir. 2008).

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