Takhtakhunov v. Garland ( 2021 )

20-1137
Takhtakhunov v. Garland
BIA
Farber, IJ
A215 747 310
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 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF 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 ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 26th day of July, two thousand twenty-one.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 RENAT TAKHTAKHUNOV,
14 Petitioner,
15
16 v. 20-1137
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent. *
21 _____________________________________
22
23 FOR PETITIONER: Edgar L. Fankbonner, Esq.,
24 Goldberger & Dubin, PC, New York,
25 NY.
26
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically
substituted as Respondent.
1 FOR RESPONDENT: Bryan Boynton, Acting Assistant
2 Attorney General; Bernard A.
3 Joseph , Senior Litigation
4 Counsel; Rodolfo D. Saenz, Trial
5 Attorney, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Renat Takhtakhunov, a native and citizen of
14 Kazakhstan, seeks review of a March 13, 2020 decision of the
15 BIA, affirming a September 27, 2019 decision of an Immigration
16 Judge (“IJ”) denying asylum, withholding of removal, and
17 protection under the Convention Against Torture (“CAT”). In
18 re Renat Takhtakhunov, No. A 215 747 310 (B.I.A. Mar. 13,
19 2020), aff’g No. A 215 747 310 (Immig. Ct. N.Y.C. Sept. 27,
20 2019). We assume the parties’ familiarity with the
21 underlying facts and procedural history.
22 We have reviewed the IJ’s decision as supplemented by
23 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
24 Cir. 2005). We review the IJ’s factual findings under the
25 substantial evidence standard, and we review questions of
2
1 law, including the IJ’s findings concerning the legal
2 sufficiency of the evidence, de novo. See 8 U.S.C. §
3 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
4 2014); Edimo-Doualla v. Gonzales, 464 F.3d 276, 281-83 (2d
5 Cir. 2006).
6 To establish eligibility for asylum, an applicant must
7 show that he has suffered past persecution or has a well-
8 founded fear of future persecution, and that “race, religion,
9 nationality, membership in a particular social group, or
10 political opinion was or will be at least one central reason
11 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
12 see id. § 1101(a)(42). Persecution may “includ[e] non-life-
13 threatening violence and physical abuse.” Ivanishvili v.
14 U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006)
15 (internal quotation marks and alterations omitted). The harm
16 must be sufficiently severe, rising above “mere harassment.”
17 Id.; see Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.
18 2011) (“We have emphasized that persecution is an extreme
19 concept that does not include every sort of treatment our
20 society regards as offensive.” (internal quotation marks
21 omitted)). Not every incident of physical violence
3
1 constitutes persecution. See Jian Qiu Liu v. Holder, 632
2 F.3d 820, 822 (2d Cir. 2011) (“We have never held that a
3 beating that occurs within the context of an arrest or
4 detention constitutes persecution per se.”). To constitute
5 persecution, the harm must be inflicted either by the
6 government or by private individuals that “the government is
7 unable or unwilling to control.” Pan v. Holder, 777 F.3d
8 540, 543 (2d Cir. 2015).
9 The agency did not err in finding that Takhtakhunov
10 failed to establish past persecution on account of his Uyghur
11 ethnicity. Takhtakhunov alleged that he was mistreated by
12 his classmates and that he was involved in two violent
13 altercations due to his ethnicity. However, as the agency
14 found, these were isolated incidents outside the context of
15 an arrest and detention and did not result in serious physical
16 harm. See Mei Fun Wong, 633 F.3d at 72; Jian Qiu Liu, 632
17 F.3d at 822. Moreover, the agency reasonably concluded that
18 Takhtakhunov failed to demonstrate that he was targeted on
19 account of his ethnicity. Although Takhtakhunov alleged that
20 these incidents, which occurred over the span of more than a
21 decade, were caused by anti-Uyghur sentiments, he also
4
1 testified that a classmate assaulted him for a reason that
2 was unrelated to his ethnicity, while the most recent
3 altercation began over a parking dispute. See Siewe v.
4 Gonzales, 480 F.3d 160, 167–68 (2d Cir. 2007) (“Where there
5 are two permissible views of the evidence, the factfinder’s
6 choice between them cannot be clearly erroneous” (internal
7 quotation marks omitted)).
8 Absent past persecution, Takhtakhunov had the burden to
9 show an objectively reasonable fear of future persecution.
10 See 8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357
11 F.3d 169, 178 (2d Cir. 2004). An applicant can show either
12 that he would be “singled out individually for persecution”
13 or that the country of removal has a “pattern or practice” of
14 persecuting those similarly situated to him. 8 C.F.R.
15 § 1208.13(b)(2)(iii). Takhtakhunov did not argue that he
16 would be singled out, and he did not exhaust a pattern or
17 practice claim based on country conditions on appeal to the
18 BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
19 122–23 (2d Cir. 2007) (explaining that review is generally
20 limited to issues raised before, and addressed by, the
21 agency). In his brief, Takhtakhunov does not argue that he
5
1 had an objectively reasonable fear of future persecution
2 based on his former employment. See Yueqing Zhang v.
3 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
4 (noting that petitioner abandons issues and claims not raised
5 in his brief). Finally, we do not reach Takhtakhunov’s CAT
6 claim because he did not raise that category of relief before
7 the BIA. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
8 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
6