    08-6102-ag
    Konayev v. Holder
                                                                                  BIA
                                                                          A095 841 385
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 13 th day of April, two thousand ten.

    PRESENT:
             JOSEPH M. McLAUGHLIN,
             ROBERT A. KATZMANN,
             RICHARD C. WESLEY,
                    Circuit Judges.
    _________________________________________

    IGOR VASILIEVICH KONAYEV,
             Petitioner,

                        v.                                 08-6102-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, *
             Respondent.
    _________________________________________

    FOR PETITIONER:               Jonathan R. Nelson, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney


            *
         Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr. is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
                        General, Civil Division; David V.
                        Bernal, Assistant Director, Office of
                        Immigration Litigation; Margaret
                        Kuehne Taylor, Attorney, Office of
                        Immigration Litigation, United States
                        Department of Justice, Washington, DC


    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is GRANTED.

    Petitioner Igor Vasilievich Konayev, a native and

citizen of Kazakhstan, seeks review of a November 17, 2008,

order of the BIA denying his motion to reopen.   In re Igor

Vasilievich Konayev, No. A095 841 385 (B.I.A. Nov. 17,

2008).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.    This

Court reviews the BIA’s denial of a motion to reopen for

abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

Cir. 2005) (per curiam).

    There is no dispute that Konayev’s June 2008 motion to

reopen was untimely because the agency issued a final order

of removal in August 2004.   See 8 C.F.R. § 1003.2(c)(2).

However, there is no time or numerical limitation for filing

a motion to reopen if it is “based on changed circumstances


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arising in the country of nationality or in the country to

which deportation has been ordered, if such evidence is

material and was not available and could not have been

discovered or presented at the previous hearing.”       8 C.F.R.

§ 1003.2(c)(3)(ii).

    Here, the BIA abused its discretion by failing to

consider material evidence submitted by Konayev in support

of his motion to reopen.   Shou Yung Guo v. Gonzales, 463

F.3d 109, 115 (2d Cir. 2006).       “Despite our generally

deferential review of IJ and BIA opinions, we require . . .

some indication that the [BIA] considered material evidence

supporting a petitioner's claim.” Poradisova v. Gonzales,

420 F.3d 70, 77 (2d Cir. 2005).

    Much of the over 700 pages of evidence submitted with

Konayev’s motion was arguably material to changed country

conditions in Kazakhstan and his claim that he has a well-

founded fear of persecution based on his religion.       Yet, the

BIA failed to indicate in its decision that it considered

substantial pieces of evidence bearing materially on

Konayev’s claim.   Rather, it improperly placed “excessive

reliance” on published reports of the Department of State

and quoted selected passages from an expert affidavit to


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conclude that “the evidence submitted with the respondent’s

motion does not demonstrate that he will face persecution by

the government, nor does it demonstrate that the government

would be unwilling or unable to protect the respondent from

harm.” S.P.A.3.   See Tian-Yong Chen v. I.N.S., 359 F.3d 121,

130 (2d Cir. 2004).    Because Konayev submitted evidence

material to his claim that country conditions in Kazakhstan

have changed with regard to the treatment of non-traditional

evangelical registered Baptist church members such as

himself, the BIA’s failure to consider the evidence was an

abuse of discretion.    Thus, remand is warranted in order to

allow the BIA to consider Konayev’s evidence of changed

country conditions and whether he can establish a well-

founded fear of persecution.     See Cao He Lin v. U.S. Dep’t

of Justice, 428 F.3d 391, 406 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

GRANTED and the case is REMANDED for further proceedings

consistent with this decision.       As we have completed our

review, the pending motion for a stay of removal in this

petition is DISMISSED as moot.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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