     13-322
     Kuzmenko v. Holder
                                                                                        BIA
                                                                                Vomacka, IJ
                                                                                 A075915484

                          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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of September, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                     Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                     District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       PETRO PETROVICH KUZMENKO, AKA MIKOLA
14       ZAVGORODNIY, AKA NICOLAI IVANOVICH
15       ZAVGORODNIY
16                Petitioner,
17
18                    -v.-                                               13-322
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,


                *
                  Judge Lewis A. Kaplan, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1            Respondent.
 2   - - - - - - - - - - - - - - - - - - - -X
 3
 4   FOR PETITIONER:            Petro Petrovich Kuzmenko, Pro
 5                              Se, Brooklyn, New York.
 6
 7   FOR RESPONDENT:            Stuart F. Delery, Acting
 8                              Assistant Attorney General;
 9                              Anthony C. Payne, Senior
10                              Litigation Counsel; Jem C.
11                              Sponzo, Trial Attorney, Office
12                              of Immigration Litigation,
13                              United States Department of
14                              Justice, Washington, D.C.
15
16        UPON DUE CONSIDERATION of this petition for review of a
17   Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY
18   ORDERED, ADJUDGED AND DECREED that the petition for review
19   is GRANTED IN PART and DENIED IN PART.
20
21        Petitioner Petro Petrovich Kuzmenko, a native and
22   citizen of Ukraine, seeks review of a January 7, 2013 order
23   of the BIA, denying his due process challenge and affirming
24   the June 13, 2011 decision of an Immigration Judge ("IJ"),
25   which denied his application for asylum, withholding of
26   removal, and relief under the Convention Against Torture
27   ("CAT"). In re Petro Petrovich Kuzmenko, No. A075 915 484
28   (B.I.A. Jan. 7, 2013), aff'g No. A075 915 484 (Immig. Ct.
29   New York City June 13, 2011). We assume the parties'
30   familiarity with the underlying facts and procedural history
31   in this case.
32
33        We review the IJ's decision as supplemented and
34   modified by the BIA, i.e., minus the arguments for denying
35   relief that were rejected or not explicitly relied on by the
36   BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d
37   520, 522 (2d Cir. 2005). The applicable standards of review
38   are well established. See 8 U.S.C. § 1252(b)(4)(B); see
39   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
40   2009).
41
42        The agency found that Kuzmenko's particular social
43   group of persons who had cooperated with the FBI against the
44   Ukrainian mafia lacked the requisite social visibility
45   because an informant's cooperation is not generally
46   identifiable by other persons. This finding appears to

                                  2
 1   reflect a literal approach to the social visibility
 2   requirement. See Matter of C-A-, 23 I. & N. Dec. 951, 960
 3   (B.I.A. 2006) (finding that a group of confidential
 4   informants against a drug cartel lacked social visibility
 5   because "[i]n the normal course of events, an informant
 6   against the . . . cartel intends to remain unknown and
 7   undiscovered [and r]ecognizability or visibility is limited
 8   to those informants who are discovered because they appear
 9   as witnesses or otherwise come to the attention of cartel
10   members"). Subsequent to the agency's decision in this
11   case, however, the BIA clarified that the social visibility
12   requirement does not mean literal or "ocular" visibility but
13   rather that "the relevant society perceives, considers, or
14   recognizes the group as a distinct social group." Matter of
15   W-G-R-, 26 I. & N. Dec. 208, 211-12, 216-18 (B.I.A. 2014);
16   accord Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A.
17   2014). The BIA has also recast "social visibility" as
18   "social distinction." Matter of W-G-R-, 26 I. & N. Dec. at
19   212. Without endorsing or opining on that change in
20   position, we conclude that remand is appropriate for
21   application of the social distinction requirement in the
22   first instance. See Matter of M-E-V-G-, 26 I. & N. Dec. at
23   252 (remanding to the IJ for consideration of petitioner's
24   particular social group under the clarified social
25   distinction paradigm).1
26
27        As to another of Kuzmenko's arguments, the BIA did not
28   err in rejecting the due process challenge to the purported
29   misconduct of the Department of Homeland Security's ("DHS")
30   counsel in preventing his witness from testifying. See
31   Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
32   (noting that "[p]arties claiming denial of due process in
33   immigration cases must, in order to prevail, allege some
34   cognizable prejudice fairly attributable to the challenged
35   process" (internal quotation marks omitted)). As the BIA
36   determined, Kuzmenko had not shown prejudice resulting from
37   the absence of his witness's testimony because his claim was
38   denied for failure to establish a nexus to a protected


         1
              The BIA's alternative finding--that Kuzmenko's
     social group lacks sufficient particularity--does not
     militate against remand, because "[t]he ‘social distinction'
     and ‘particularity' requirements . . . overlap because the
     overall definition [of a particular social group] is applied
     in the fact-specific context of an applicant's claim for
     relief." See Matter of M-E-V-G-, 26 I. & N. Dec. at 241.
                                  3
 1   ground--not because of a failure to establish his
 2   cooperation with the FBI. Indeed, the IJ credited the
 3   witness's affidavit and found that it was entitled to a fair
 4   amount of weight. Kuzmenko now argues that live testimony
 5   would have been more persuasive, but he fails to identify
 6   any facts that his witness's live testimony would have
 7   established that were absent from the affidavit.
 8   Importantly, it was Kuzmenko who elected to proceed without
 9   live testimony and declined a suggestion by the IJ to seek
10   an additional continuance in order to secure his witness.
11   Therefore, the BIA did not err in finding that Kuzmenko
12   failed to demonstrate that he was prejudiced by DHS's
13   alleged misconduct. See Garcia-Villeda, 531 F.3d at 149.
14
15        Lastly, we are unable consider Kuzmenko's ineffective
16   assistance of counsel claims in the first instance because
17   he has not complied with the Lozada requirements. See
18   Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988); see
19   also Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d
20   Cir. 2005) (requiring substantial compliance with Lozada to
21   preserve an ineffective assistance of counsel claim).
22
23        For the foregoing reasons, the petition for review is
24   GRANTED in part and DENIED in part. As we have completed
25   our review, any stay of removal that the Court previously
26   granted in this petition is VACATED, and any pending motion
27   for a stay of removal in this petition is DISMISSED as moot.
28   Any pending request for oral argument in this petition is
29   DENIED in accordance with Federal Rule of Appellate
30   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34
35
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