16-3437-ag
Kulmatov v. Whitaker
                              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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of November two thousand eighteen.

PRESENT:          JOSÉ A. CABRANES,
                  ROBERT D. SACK,
                               Circuit Judges,
                  JOHN G. KOELTL,
                               District Judge.*




ELDAR KULMATOV, VERA DERYABINA,

                         Petitioners,                               16-3437-ag

                         v.
MATTHEW G. WHITAKER, ACTING UNITED STATES
ATTORNEY GENERAL,




    *
    Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.

                                                  1
                       Respondent.†



FOR PETITIONERS:                                          H. RAYMOND FASANO, Youman, Madeo
                                                          & Fasano, LLP, New York, NY.

FOR RESPONDENT:                                           SHARON M. CLAY, Trial Attorney, Office
                                                          of Immigration Litigation (Chad E.
                                                          Readler, Acting Assistant Attorney
                                                          General, and Nancy Friedman, Senior
                                                          Litigation Counsel, on the brief), Civil
                                                          Division, U.S. Department of Justice,
                                                          Washington, DC.

       Petition for review of a September 13, 2016 order of the Board of Immigration Appeals.

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition be and hereby is DENIED.

                                                  I.

        Petitioners Eldar Kulmatov (“Kulmatov”) and Vera Deryabina (jointly, “Petitioners”)
petition for review of an order of the Board of Immigration Appeals (“BIA”) dismissing their appeal
from an order of removal of an immigration judge. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

                                                 II.

                                                 A.

       We review the BIA’s conclusions of law de novo and its findings of fact for substantial
evidence. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Under the substantial-evidence standard,
the BIA’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Majidi v. Gonzales, 430 F.3d 77, 79 (2d Cir. 2005) (quoting 8 U.S.C.
§ 1252(b)(4)(B)).




   †
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Matthew
G. Whitaker is automatically substituted for former Attorney General Jefferson B. Sessions III, as
Respondent.

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                                                     B.

                                                     1.

       Petitioners argue that the BIA lacked substantial evidence for its determinations that
Kulmatov had not suffered past persecution and did not have a well-founded fear of future
persecution on account of his partial Uzbek ethnicity and was therefore ineligible for asylum. The
BIA rested these determinations in part on a further determination that Petitioners had failed to
prove that the government of Kyrgyzstan, the country from which Kulmatov originated, was unable
or unwilling to protect Kulmatov from persecution.

          “To establish eligibility for asylum, an applicant must show that he or she is a refugee who
has suffered past persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion, or has a well-founded fear of persecution on one of these
grounds.” Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008) (citing 8 U.S.C. § 1101(a)(42); Islami v.
Gonzales, 412 F.3d 391, 394 (2d Cir. 2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t
of Justice, 494 F.3d 296, 305 (2d Cir. 2007)). If the alleged past persecution or well-founded fear of
future persecution stems from acts of private persons, the applicant must still prove that the
government of the country from which he or she has fled is unable or unwilling to protect him or
her from persecution. See id.

        We conclude that the BIA’s determinations rest on substantial evidence because we do not
think “any reasonable adjudicator would be compelled” to find that the Kyrgyz government was or
is unable or unwilling to protect Kulmatov from persecution. Majidi, 430 F.3d at 79.

        The evidence to support the Kyrgyz government’s alleged inability or unwillingness to
protect Kulmatov consists mainly of Kulmatov’s testimony about two episodes of violence
committed against him in Bishkek, the capital of Kyrgyzstan, by private persons; a corroborating
written statement made by Kulmatov’s mother; and several news articles and research reports about
conditions in Kyrgyzstan, including two reports issued by the Department of State. Kulmatov’s
testimony and his mother’s written statement include assertions that both episodes of violence were
reported to the police but that the perpetrators were never apprehended. Kulmatov testified that
after the first episode he had given the police descriptions of the perpetrators along with their car
license plate number but did not know their names or addresses; after the second episode the police
reportedly lacked enough information to identify the perpetrators. The news articles and research
reports, for their part, discuss various forms of Kyrgyz government abuses, including incidents of
serious mistreatment of Uzbeks in the southern part of Kyrgyzstan.

       This evidence is arguably equivocal about the capacities and intentions of the Kyrgyz state.
But we do not think that it compels a reasonable adjudicator to find that Kyrgyzstan was or is



                                                      3
unable or unwilling to protect Kulmatov.1 One could conclude from the evidence of the Kyrgyz
authorities’ efforts after the two episodes of violence that the authorities had been derelict and
“unwilling” to protect Kulmatov. But one could conclude with equal plausibility that they simply did
not have enough information to identify the assailants. Similarly, one might infer from reports of
mistreatment of Uzbeks in southern Kyrgyzstan that Uzbeks were being persecuted in the northern
capital region and that the Kyrgyz authorities were therefore “unable” to protect Kulmatov. But one
might also infer, with somewhat greater plausibility, that Uzbeks were not being subjected to such
abuses in the capital city of Bishkek, where Kulmatov was living; otherwise the reports would have
mentioned Bishkek or the capital region.2

                                                     2.

       Petitioners also argue that the BIA “erroneously declined to remand despite overturning the
[immigration judge’s] nexus determination,” Br. Pet’rs 15, and that the episodes of violence against
Kulmatov are comparable to mistreatment that was held in two other cases to constitute
persecution. We do not need to consider these arguments because, as we have already concluded,



    1
      In a letter submitted pursuant to Fed. R. App. P. 28(j), and dated October 11, 2018, Kulmatov
argues that the BIA erroneously applied the “unable or unwilling” standard based on his
interpretation of a First Circuit case: Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018). Justo clarified that
“the inquiry into whether there is a government nexus must include separate consideration of the
evidence of unwillingness and the evidence of inability.” Id. at 164 n.8. Kulmatov argues that the
BIA conflated its analysis of unwillingness and inability. We disagree. The BIA thoroughly examined
the Kyrgyz government’s willingness to protect Kulmatov from persecution, including the
investigatory actions taken by the police and the Ministry of Internal Affairs. The BIA’s “ability”
analysis, albeit concise, turned on the fact that Kulmatov could not identify his assailants, thereby
stymying any investigatory efforts. And unlike Justo, the country condition reports, discussed infra, do
not conclusively establish that the Kyrgyz police were unable to protect Kulmatov under the specific
facts of his case. Cf. id. at 165 (finding country condition reports “particularly probative” where they
“specifically addressed the failure of the police in [the petitioner’s] home state” and where they
“closely mirrored the specific circumstances described by [the petitioner]”).
        2
          Petitioners repeatedly allege that the BIA failed to give adequate attention to the articles
and reports about mistreatment of Uzbeks. That the BIA in fact did consider this part of the record
is indicated by the references in its decision to the immigration judge’s discussion of the articles and
reports, to the human rights report of the Department of State, and to accounts of the violence in
southern Kyrgyzstan. See R. 5 (“While the respondent’s evidence of country conditions in
Kyrgyzstan reflects violent ethnic clashes between ethnic Uzbeks and ethnic Kyrgyz in mid-2010 as
well as continued ethnic tension and discrimination against ethnic Uzbeks, the evidence did not
reflect a pattern or practice of persecution of ethnic Uzbeks (I.J. at 9, 11–13 & n.3; Exh. 5(J) at 37–
70, 103–05, 122–27).”).




                                                     4
Petitioners have failed to prove that the Kyrgyz government was or is unable or unwilling to protect
Kulmatov and thus cannot carry their burden of proving that Kulmatov was persecuted or has a
well-founded fear of future persecution.

                                                  3.

        Petitioners argue separately that the BIA erred when it deemed them to have waived any
argument against the immigration judge’s denial of their application for relief under the Convention
Against Torture. When the BIA has held that an issue has been waived, “this Court’s review is
limited to whether the BIA erred in deeming the argument waived.” Prabhudial v. Holder, 780 F.3d
553, 555–56 (2d Cir. 2015). In this case, we conclude that the BIA did not err because, like the BIA,
we see nothing in Petitioners’ submission to the BIA raising the issue of their eligibility for relief
under the Convention Against Torture.

                                          CONCLUSION

       For the foregoing reasons Petitioners’ petition for review is DENIED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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