Koudriachova v. Gonzales

03-4811(L)
Koudriachova v. Gonzales
UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
3 _______________ 4
5 August Term, 2006 6
7 (Argued October 30, 2006 Decided June 26, 2007) 8
9 Docket Nos. 03-4811(L), 03-41229(Con) 10
11 _______________ 12
13 ELENA KOUDRIACHOVA, ALEXANDRE KOUDRIACHOV, 14 & ILIA KOUDRIACHOV, 15
16 Petitioners, 17
18 v. 19
20 ALBERTO R. GONZALES, Attorney General, 21
22 Respondent. 23
24 _______________ 25
26 Before: 27 CARDAMONE, WALKER, and RAGGI, 28 Circuit Judges. 29
30 _______________ 31
32 Petitioner Alexandre Koudriachov petitions for review of the 33 March 26, 2003 order of the Board of Immigration Appeals (BIA) 34 dismissing his application for asylum. Koudriachov also 35 petitions for review of the BIA's December 12, 2003 order denying 36 his motion to reconsider its March 26, 2003 decision. 37
38 Petition granted, in part, and dismissed, in part. 39
40 _______________ 41
42 MICHAEL P. DiRAIMONDO, Melville, New York (Marialaina L. Masi, 43 Mary Elizabeth Delli-Pizzi, DiRaimondo & Masi, LLP, 44
Melville, New York, of counsel), for Petitioners. 45
46 Norman Cairns, Assistant United States Attorney, Albuquerque, New 47 Mexico (David C. Iglesias, United States Attorney, District 48 of New Mexico, Albuquerque, New Mexico), filed a brief for 49 Respondent. 50

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CARDAMONE, Circuit Judge: 1
Petitioner Alexandre Koudriachov (petitioner or appellant) 2
seeks review of a March 26, 2003 decision and order of the Board 3
of Immigration Appeals (BIA or Board), denying his application 4
for asylum and withholding of removal. In re Koudriachova, No. 5
A 70 652 782 (B.I.A. Mar. 26, 2003), aff'g No. A 70 652 782 6
(Immig. Ct. N.Y. City Feb. 22, 1999). 7
The BIA, in a nonprecedential decision by a single member of 8
the Board, dismissed petitioner's appeal because it found he had 9
failed to show that he had been persecuted, or that he had a 10
well-founded fear of future persecution, on account of any of the 11
grounds protected by the Immigration and Nationality Act (INA). 12
Koudriachov also seeks review of the BIA's December 12, 2003 13
order denying his motion to reopen its March 26, 2003 decision. 14
In re Koudriachova, No. A 70 652 782 (B.I.A. Dec. 12, 2003). 15
Because the BIA's March 26, 2003 decision dismissing 16
petitioner's appeal contains significant ambiguities and 17
potential misunderstandings of the relevant legal standards, we 18
grant the petition for review and remand to the BIA for 19
additional investigation or explanation. We dismiss petitioner's 20
motion to reopen the December 12, 2003 order of the BIA as moot. 21
BACKGROUND 22
The BIA held that Koudriachov was ineligible for asylum even 23
if his testimony before the immigration judge (IJ) and in his 24
asylum application was wholly credible. Consequently, for 25
purposes of this appeal, we accept petitioner's account of the 26

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3
events leading up to his application for asylum as truthful and 1
accurate. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d 2
Cir. 2005). 3
Koudriachov is a native of the former United Soviet 4
Socialist Republic (Soviet Union or USSR). In his testimony 5
before the IJ, petitioner provided a harrowing and at times 6
brutal account of his experiences in the Soviet military and as a 7
neophyte Russian intelligence agent. His encounters with the 8
Soviet military began when he was 18 and, as part of a period of 9
mandatory military service, he was drafted into the USSR Ministry 10
of Internal Affairs (MVD). Petitioner explained that the MVD was 11
not a part of the regular Soviet army, but rather comprised a 12
special group of troops responsible for guarding secret military 13
objects and locations, controlling riots in prisons and student 14
towns, and fulfilling special assignments relating to terrorism 15
and saboteur groups. To prepare MVD soldiers for their unique 16
responsibilities, they were given extensive physical, 17
psychological, and ideological conditioning. Koudriachov found 18
objectionable many aspects of the MVD training program and 19
operations. In particular, he believes it morally wrong that 20
convicted criminals were brought to the MVD base so that soldiers 21
could practice combat techniques on them. Partially as a result 22
of his moral misgivings regarding these practices, Koudriachov 23
resolved not to pursue a military career. 24
He completed his term of military service in 1983 and 25
subsequently enrolled at the Leningrad Institute of Meteorology 26

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(Institute) in what is now the City of St. Petersburg. Following 1
his participation in an international student festival, 2
Koudriachov was summoned to the regional headquarters of the 3
Komsomol, the youth wing of the Communist Party. There he met 4
with a Komsomol official who ordered him to write reports on his 5
interactions with foreigners. Koudriachov objected to writing 6
such reports, but agreed to do it after being threatened with 7
expulsion from the Institute. The purpose of the reports was 8
never explained, though petitioner suspected they were used to 9
obtain personal information about foreigners for the purpose of 10
blackmailing them. He believes he was selected for this task 11
because of his previous training with the Ministry of Internal 12
Affairs. 13
In his third year at the Institute Koudriachov was ordered 14
to report to an address, No. 4 Liteynyi, which was known to be 15
the headquarters of the KGB Intelligence Service in Leningrad 16
(St. Petersburg). There he met an individual referred to as 17
Vitaly Sergeyevich. There is some confusion in the record as to 18
whether Sergeyevich contacted Koudriachov on behalf of the MVD or 19
the KGB. We will refer to the agency as the KGB for purposes of 20
this opinion without resolving this factual question. 21
Sergeyevich became Koudriachov's contact within the KGB. In 22
their initial meeting, Sergeyevich informed the petitioner that 23
he had been selected to work as a spy for the Soviet government 24
and that he would eventually be attending a special school in 25

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Moscow to prepare him for this work. Koudriachov had no desire 1
to become a KGB agent but realized he had no choice. 2
After graduating from the Meteorology Institute in 1989, 3
petitioner received an assignment from Sergeyevich to begin work 4
at a factory that employed many foreign specialists. Koudriachov 5
was told that he would work there for a few years before 6
attending spy school. Petitioner testified that throughout his 7
employment at the factory he met regularly with Sergeyevich to 8
report technical and personal information he had obtained from 9
his co-workers. While Koudriachov thought it immoral to betray 10
his co-workers in this way, he continued to divulge the 11
information because Sergeyevich threatened him by saying he would 12
be drafted into the army or subject to violence were he to 13
refuse. 14
As the date for petitioner's departure to spy school drew 15
near, he resolved to defect from the KGB and flee with his family 16
to the United States. In preparation for this momentous step, 17
Koudriachov tried to distance himself from Sergeyevich's 18
surveillance by moving to a different address in St. Petersburg. 19
However, very soon after he moved, he was attacked in the street 20
by two men who Koudriachov believes were sent by Sergeyevich. 21
Indeed, the day after the attack, the petitioner was summoned to 22
Sergeyevich's office and asked about his change of residence. 23
On September 20, 1992 Koudriachov and his family entered the 24
United States on visitor visas. In 1993 Koudriachov's wife, 25
Elena, applied for asylum and withholding of removal. 26

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Koudriachov was selected for a Diversity Visa in April 1998 and 1
became eligible for adjustment of status to legal permanent 2
resident. Once he realized that his adjustment application 3
required him to request that the Russian government reissue or 4
register his passport, however, Koudriachov decided that he could 5
not pursue his adjustment application and had to pursue an asylum 6
claim instead. The IJ allowed Koudriachov to substitute his 7
asylum application for that of his wife's on October 28, 1998. 8
On February 22, 1999 the IJ rejected the petitioner's 9
application for asylum and withholding of removal, finding that 10
he was not credible. Koudriachov appealed the decision to the 11
BIA. On March 26, 2003 the BIA dismissed the appeal. The BIA 12
assumed the petitioner was credible, but found he had nonetheless 13
failed to establish that he was persecuted or fears persecution 14
on account of any ground protected under the INA. Ninety days 15
later, petitioner filed a timely motion to reopen with the BIA in 16
which he offered new evidence in the form of an expert affidavit 17
of a former KGB intelligence officer, Yuri Shvets, and, for the 18
first time, requested relief under CAT. On December 12, 2003 the 19
BIA denied the motion to reopen. Koudriachov now petitions for 20
review of the BIA's dismissal of his appeal from the IJ's 21
February 22, 1999 decision and the BIA's denial of his motion to 22
reopen. We grant the petition in part, and dismiss in part. 23

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DISCUSSION 1
I Overview of Applicable Law 2
Where, as here, the BIA does not adopt the IJ's decision to 3
any extent, we review only the decision of the BIA. See Chen v. 4
Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 513 (2d 5
Cir. 2006). We review de novo the BIA's interpretation of the 6
law as well as its application of the law to the facts. See 7
Tanov v. INS, 443 F.3d 195, 198 (2d Cir. 2006). When the BIA 8
interprets ambiguous language in the INA in a precedential 9
opinion issued by a three judge panel, we defer to that 10
interpretation so long as it is reasonable. See Rotimi v. 11
Gonzales, 473 F.3d 55, 56-58 (2d Cir. 2007) (per curiam); Chevron 12
U.S.A. Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 843- 13
44 (1984). Factual findings are reviewed under the substantial 14
evidence standard and are upheld when they are supported in the 15
record by reasonable, substantial, and probative evidence. See 16
Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005). 17
To qualify as a "refugee," an asylum applicant must 18
establish that he or she has been persecuted in the past, or has 19
a well-founded fear of persecution in the future, on any one of 20
five statutorily protected grounds. See Edimo-Doualla v. 21
Gonzales, 464 F.3d 276, 281 (2d Cir. 2006). These grounds 22
include persecution on account of (1) race, (2) religion, (3) 23
nationality, (4) membership in a particular social group, or (5) 24
political opinion. 8 U.S.C. § 1101(a)(42). In this case, 25
Koudriachov asserts that he is eligible for asylum because he 26

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faces persecution in Russia on account of his membership in the 1
particular social group of defected KGB intelligence agents and 2
on account of political opinions that will be imputed to him. 3
Such fear may be well-founded even if there is only a slight, 4
though discernible, chance of persecution. Yan Chen, 417 F.3d at 5
270. 6
II Membership in a Particular Social Group 7
A. General Principles 8
We have observed that of the five grounds protected under 9
the INA, membership in a "particular social group" is the least 10
well-defined on its face. See Hong Ying Gao v. Gonzales, 440 11
F.3d 62, 66-67 (2d Cir. 2006). Because the legislative history 12
of the INA does not shed much, if any, light on the meaning of 13
the phrase, courts have struggled to apply it. See Fatin v. INS, 14
12 F.3d 1233, 1239 (3d Cir. 1993) (Alito, J.) (detailing 15
legislative history of particular social group language and 16
noting lack of evidence regarding legislative aim). It is fair 17
to say that the resulting applications establishing refugee 18
status on this ground have not been entirely consistent. Among 19
the groups that the various courts of appeals have found, on the 20
one hand, to qualify as particular social groups under the INA 21
are: women sold into marriage who live in a part of China where 22
forced marriages are considered valid and enforceable, Hong Ying 23
Gao, 440 F.3d at 70; former employees of Columbia's Attorney 24
General's Office, Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th 25
Cir. 2006); the educated, landowning class of cattle farmers 26

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targeted by the Revolutionary Armed Forces of Columbia, Tapiero 1
de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); 2
Somalian females, Mohammed v. Gonzales, 400 F.3d 785, 798 (9th 3
Cir. 2005); and gay men with female sexual identities in Mexico, 4
Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000). 5
On the other hand, the following groups have been found not to 6
constitute particular social groups: uncorrupt Ukrainian 7
prosecutors who exposed government corruption, Pavlyk v. 8
Gonzales, 469 F.3d 1082, 1088 (7th Cir. 2006); anonymous 9
noncriminal informants, Castillo-Arias v. U.S. Att'y Gen., 446 10
F.3d 1190, 1197 (11th Cir. 2006); tattooed youth, Castellano- 11
Chacon v. INS, 341 F.3d 533, 549 (6th Cir. 2003); and children 12
from Northern Uganda, Lukwago v. Ashcroft, 329 F.3d 157, 171-72 13
(3d Cir. 2003). 14
B. BIA's Test In Matter of Acosta 15
In 1985, the BIA undertook to clarify the meaning of the 16
phrase particular social group in the seminal decision of Matter 17
of Acosta, 19 I. & N. Dec. 211, 232-34 (BIA 1985), overruled in 18
part on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 19
(1987). In Matter of Acosta, the BIA explained that a particular 20
social group is one unified by some characteristic that is either 21
(1) "beyond the power of an individual to change" or (2) "so 22
fundamental to individual identity or conscience that it ought 23
not be required to be changed." Matter of Acosta, 19 I. & N. 24
Dec. at 233. The BIA explained that "[t]he shared characteristic 25
might be an innate one such as sex, color, or kinship ties, or in 26

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some circumstances it might be a shared past experience such as 1
former military leadership or land ownership." Id. 2
Recently, in In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), the 3
BIA reaffirmed the Acosta test and provided further clarification 4
regarding its proper application. See id. at 955-61. It 5
observed that Acosta does not require "a voluntary associational 6
relationship among group members" nor does it require an element 7
of "cohesiveness or homogeneity among group members." Id. at 8
956-57. However, a group's "visibility" -- meaning the extent to 9
which members of society perceive those with the relevant 10
characteristic as members of a social group -- is a factor in 11
determining whether it constitutes a particular social group 12
under the INA. Id. at 957, 959-60. 13
With regard to groups united by some shared past experience, 14
In re C-A- reiterated that shared past experiences do constitute 15
an immutable characteristic because a past experience cannot be 16
undone. See id. at 958; see also Matter of Fuentes, 19 I.& N. 17
Dec. 658, 662 (BIA 1988) (stating that an applicant's status "as 18
a former member of the national police" was "in fact an immutable 19
characteristic" that could serve as the basis of a particular 20
social group). Yet, not all applicants who can point to 21
membership in some group united by a shared past experience will 22
qualify for asylum. Rather, an asylum applicant's status as a 23
member of a particular social group -- and not some other factor 24
-- must be the central reason why that individual is targeted for 25
persecution. Thus, the BIA indicated that an individual who is 26

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targeted due to her status as a former police officer may be 1
eligible for asylum as a member of the particular social group of 2
former police officers. See In re C-A-, 23 I. & N. Dec. at 958- 3
59; see also Matter of Fuentes, 19 I. & N. Dec. at 662. But, a 4
former police officer singled out for reprisal because of her 5
role in disrupting particular criminal activity would likely not 6
be eligible for asylum. In re C-A-, 23 I. & N. Dec. at 959. In 7
the second scenario, the persecution the applicant fears is not a 8
result simply of her status as a former police officer, but 9
rather is a result occasioned by other factors more specific to 10
the particular applicant. 11
In sum, the BIA has adopted a broad definition of particular 12
social group, one that encompasses groups united by a shared past 13
experience. Nonetheless, in determining whether an applicant 14
ultimately qualifies for asylum, courts must examine closely 15
whether the persecution the applicant fears derives primarily 16
from his or her status as a member of that particular social 17
group or whether it derives primarily from some other factor. 18
C. BIA's Test is Reasonable 19
The BIA's interpretation of the ambiguous phrase particular 20
social group is reasonable and merits our deference under 21
Chevron. See Hong Ying Gao, 440 F.3d at 69-70 (stating that the 22
BIA in Acosta adopted a reasonable interpretation of the 23
statutory language); see also Ucelo-Gomez v. Gonzales, 464 F.3d 24
163, 171 (2d Cir. 2006) (per curiam) (observing that the BIA in 25
Acosta provided guidance as to what constitutes a particular 26

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social group). Our decision in Gomez v. INS, 947 F.2d 660 (2d 1
Cir. 1991), has been interpreted by some other circuits as laying 2
down a test for what constitutes a particular social group that 3
is at odds with the Acosta test. See, e.g., Niang v. Gonzales, 4
422 F.3d 1187, 1199 (10th Cir. 2005); Castellano-Chacon, 341 F.3d 5
at 546 (6th Cir. 2003); Mya Lwin v. INS, 144 F.3d 505, 512 (7th 6
Cir. 1998). However, we have recently clarified that the best 7
reading of Gomez is one that is consistent with Acosta. See Hong 8
Ying Gao, 440 F.3d at 69-70. Gomez involved a Salvadorian woman 9
who applied for asylum on the grounds that she had been 10
repeatedly raped as a youth by Guerrilla forces. See Gomez, 947 11
F.2d at 662. We denied her petition because there was "no 12
indication that [the petitioner] will be singled out for further 13
brutalization on [the basis of her past victimization]." Id. at 14
664. In Hong Ying Gao, we stated that broad dicta in Gomez's 15
general statement of the law should not be read "as setting an a 16
priori rule for which social groups are cognizable." Hong Ying 17
Gao, 440 F.3d at 69. Rather, Gomez should be read as standing 18
for the proposition that an individual will not qualify for 19
asylum if he or she fails to show a risk of future persecution on 20
the basis of the membership claimed in the particular social 21
group. Id. This reading of Gomez gives proper deference to the 22
BIA's reasonable interpretation of the particular social group 23
statutory language and accords with the approach taken by our 24
sister circuits. See Castillo-Arias, 446 F.3d at 1196 (11th Cir. 25
2006); Thomas v. Gonzales, 409 F.3d 1177, 1184-87 (9th Cir. 2005) 26

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(en banc), vacated on other grounds, 547 U.S. 183 (2006) (per 1
curiam); Niang, 422 F.3d at 1199 (10th Cir. 2005); Silva v. 2
Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005); Castellano-Chacon, 341 3
F.3d at 546-48 (6th Cir. 2003); Mya Lwin, 144 F.3d at 512 (7th 4
Cir. 1998); Fatin, 12 F.3d at 1239-40 (3d Cir. 1993). 5
D. Acosta Test Applied to the Present Case 6
We analyze now whether the BIA correctly applied the law in 7
this case by looking at whether the BIA's decision here was 8
compatible with its own reasonable and precedential decision in 9
Acosta. Here, the BIA concluded that Koudriachov did not belong 10
to a particular social group because the evidence did not 11
establish that defected KGB agents maintain "any associational 12
relationship" or share "any recognizable and discrete 13
characteristic." While the basis of the BIA's holding is 14
somewhat unclear, it appears that the BIA may have misapplied its 15
own Acosta test in reaching this determination. The Board's 16
observation that Koudriachov presented no evidence that defected 17
KGB agents associate with one another is correct; however, it is 18
also not on point. No such associational relationship is 19
required under Acosta. As the BIA recently clarified in In re C- 20
A-: "Under Acosta, we do not require a 'voluntary associational 21
relationship' among group members." In re C-A-, 23 I. & N. Dec. 22
at 956-57. 23
The Board also noted that the group of defected KGB agents 24
lack "any recognizable and discrete characteristic" but failed to 25
explain why the shared past experience of having served in and 26

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defected from the KGB does not constitute such a characteristic. 1
Under Acosta and In re C-A-, it is clear that a shared past 2
experience, such as prior military leadership, can be the type of 3
immutable characteristic that will characterize a particular 4
social group. See Acosta, 19 I. & N. Dec. at 233 (listing a 5
"shared past experience such as former military leadership" as an 6
example of a "shared characteristic" that unites a particular 7
social group); In re C-A-, 23 I. & N. Dec. at 958. There is no 8
additional requirement that members of a group share an "element 9
of 'cohesiveness' or homogeneity." In re C-A-, 23 I. & N. Dec. 10
at 957. 11
It is not our task to determine, in the first instance, 12
whether the group of defected KGB agents constitute a particular 13
social group. Rather, in accordance with the Supreme Court's 14
mandate in Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 15
(2006) (per curiam), we remand to the BIA for additional 16
investigation or explanation with respect to the question of 17
whether defected KGB agents form a particular social group under 18
the INA. See id. at 1615 (stating that "the proper course, 19
except in rare circumstances, is to remand to the agency" for an 20
initial determination of whether a group of persons falls within 21
the statutory term "particular social group"). The Board may 22
conclude that defected KGB agents -- despite their shared past 23
experiences -- do not constitute a particular social group. But, 24
if such is the Board's finding, it must make its reasons for that 25
finding clear and explain how the finding comports with 26

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established BIA precedent so as to afford meaningful appellate 1
review. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2
2005) ("Despite our generally deferential review of IJ and BIA 3
opinions, we require a certain minimum level of analysis from the 4
IJ and BIA opinions denying asylum, and indeed must require such 5
if judicial review is to be meaningful."). 6
Importantly, if the BIA finds that defected KGB agents do 7
constitute a particular social group under the INA, that alone 8
will not establish Koudriachov's eligibility for asylum. Rather, 9
petitioner must establish two additional elements: (1) that he 10
has a well-founded fear of persecution, and; (2) that he is a 11
target of persecution primarily on account of his status as a 12
member of the group of defected KGB agents and not on account of 13
some other factor. See 8 U.S.C. § 1101(a)(42)(A); see also In re 14
C-A-, 23 I. & N. Dec. at 958-59. 15
III Persecution on the Basis of a Political Opinion 16
The Board also found appellant had failed to demonstrate 17
that he has a reasonable fear of persecution on account of a 18
political opinion. To establish persecution on account of a 19
political opinion, an asylum applicant must show that the 20
persecution arises from his or her own actual or imputed 21
political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 482 22
(1992); Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005). 23
It is not sufficient that the persecutor acts simply out of a 24
generalized political motive. Elias-Zacarias, 502 U.S. at 482. 25
Rather, "an applicant for refugee status must establish a fear of 26

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reprisal that is different in kind from a desire to avoid the 1
exactions (however harsh) that a foreign government may place 2
upon its citizens." Xin-Chang Zhang v. Slattery, 55 F.3d 732, 3
751 (2d Cir. 1995), abrogated on other grounds by statute, 8 4
U.S.C. § 1101(a)(42). 5
As noted, we have adopted the widely endorsed proposition 6
that "an imputed political opinion, whether correctly or 7
incorrectly attributed, can constitute a ground of political 8
persecution within the meaning of the Immigration and Nationality 9
Act." Chun Gao, 424 F.3d at 129. We explained that the relevant 10
question is not whether an asylum applicant subjectively holds a 11
particular political view, but instead whether the authorities in 12
the applicant's home country perceive him to hold a political 13
opinion and would persecute him on that basis. See id. 14
In this case, the BIA ruled as follows: 15
Although the respondent testified that 16 [Sergeyevich] believed erroneously that he 17 wanted to defect, nothing in the respondent's 18 testimony revealed that [Sergeyevich] 19 attributed any political opinion to the 20 respondent's desire. Consequently, the 21
respondent failed to establish that he held a 22 political opinion or that one was imputed to 23 him. For that reason, the respondent failed 24 to establish a nexus between the harm he 25 suffered and his political opinion and 26 thereby failed to establish eligibility for 27 relief on the basis of his political opinion. 28
29 From this language, it appears the Board may have inappropriately 30
limited its analysis to the question of whether Koudriachov was 31
persecuted, while in Russia, on account of his political opinion. 32
This is not the claim petitioner makes. Koudriachov has 33

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consistently maintained that he will be persecuted if he returns 1
to Russia because the authorities will view his defection from 2
the KGB as a sign of disloyalty to the established regime. He 3
explained: "[T]hese people don't forgive the ones who defect. 4
They consider them traitors to their mother land." 5
Moreover, the BIA's conclusion that nothing in petitioner's 6
testimony demonstrated that Sergeyevich attributed any political 7
opinion to Koudriachov's desire to defect suggests that it 8
focused only on whether Sergeyevich imputed a political opinion 9
to petitioner. Koudriachov's claim, however, is not that narrow. 10
He does not aver that his fear of persecution is limited to 11
Sergeyevich; rather, Koudriachov fears that, if returned to 12
Russia, other government actors will subject him to persecution 13
on account of the adverse political opinion they will impute to 14
him. Consequently, we must remand this case for the additional 15
purpose of allowing the Board to determine whether Koudriachov 16
has a well-founded fear of persecution on account of any 17
political opinion that may be imputed to him because of his 18
defection. 19
CONCLUSION 20
For the foregoing reasons, we grant the petition for review 21
and remand this case to the BIA for additional explanation and 22
investigation into (1) whether the group of defected KGB agents 23
constitute a particular social group under the INA and whether 24
petitioner has a well-founded fear of future persecution based on 25
his membership in such a group, and (2) whether the petitioner 26

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has a well-founded fear of persecution on account of any 1
political opinions that may be imputed to him as a result of his 2
defection. The petition for review of the BIA's December 12, 3
2003 decision denying the motion to reopen is dismissed as moot. 4
Petition granted in part, and dismissed in part. 5

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