Bakhram Azizov v. Merrick Garland

NOT FOR PUBLICATION FILED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).
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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
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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
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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.
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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
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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.
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