Filed: Feb. 02, 2011
Latest Update: Feb. 21, 2020
Summary: 10-344-ag Ryjikov v. Holder BIA McManus, IJ A073 173 735 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 TH
Summary: 10-344-ag Ryjikov v. Holder BIA McManus, IJ A073 173 735 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..
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10-344-ag
Ryjikov v. Holder BIA
McManus, IJ
A073 173 735
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of February, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSEPH M. McLAUGHLIN,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 SERGUEI RYJIKOV,
14 Petitioner,
15
16 v. 10-344-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Christopher C. Fuller,
27 Senior Litigation Counsel; Charles
28 S. Greene III, Trial Attorney,
29 Office of Immigration Litigation,
30 Civil Division, United States
31 Department of Justice, Washington,
32 D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Serguei Ryjikov, a native of the former USSR
7 and citizen of Israel, seeks review of a December 31, 2009,
8 decision of the BIA affirming the March 27, 2008, decision
9 of Immigration Judge (“IJ”) Margaret McManus denying
10 Ryjikov’s application for asylum, withholding of removal,
11 and relief under the Convention Against Torture (“CAT”). In
12 re Serguei Ryjikov, No. A073 173 735 (B.I.A. Dec. 31, 2009),
13 aff’g No. A073 173 735 (Immig. Ct. N.Y.C. Mar. 27, 2008).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as supplemented by the BIA’s decision. See
18 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established.
20 See 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder,
562 F.3d 510,
21 513 (2d Cir. 2009).
22 Ryjikov’s claim for relief from removal centers on
23 attacks he suffered in Israel, in which he alleges he was
2
1 targeted as a Russian and a Christian. The government
2 argues that he forfeited any argument that his attackers
3 might have had mixed motives, because Ryjikov failed to
4 specifically argue that point before the BIA. However, a
5 petitioner is not restricted to the “exact contours” of the
6 argument made to the agency. Gill v. INS, 420 F.3d 82,
7 85-86 (2d Cir. 2005). Since Ryjikov properly raised the
8 motivation of his attackers before the agency, the mixed
9 motive issue was sufficiently exhausted.
Id.
10 To establish eligibility for asylum or withholding of
11 removal, an applicant must establish past persecution, a
12 well founded fear of future persecution, or a likelihood of
13 future persecution by either the government or private
14 individuals that the government “is unable or unwilling to
15 control.” Rizal v. Gonzales,
442 F.3d 84, 92 (2d Cir.
16 2006); Matter of Acosta, 19 I. & N. Dec. 211, 222, 236 (BIA
17 1985), overruled on other grounds by Matter of Mogharrabi,
18 19 I. & N. Dec. 439 (BIA 1987). The agency reasonably found
19 that Ryjikov did not establish that the Israeli government
20 was unable or unwilling to protect him from his alleged
21 attackers. He testified that the Israeli police visited him
22 in the hospital to investigate. Ryjikov conceded that he
3
1 did not know whether the police took additional steps to
2 investigate, because he never followed up with the police
3 and left Israel the next month. A showing of government
4 involvement or inability to control is required for a grant
5 of asylum or withholding of removal. The agency therefore
6 did not err in denying Ryjikov’s application. See Rizal,
7 442 F.3d at 92; Matter of Acosta, 19 I. & N. Dec. at 222,
8 236. Since the failure to establish government involvement
9 or inability to control is dispositive, we do not consider
10 Ryjikov’s arguments concerning the agency’s analysis of the
11 motives of his attackers or whether the attack was serious
12 enough to constitute persecution.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2) and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
4
