Djamkhur T. Vahidov v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1916
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DJAMKHUR T. VAHIDOV,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A089-082-819)
Immigration Judge: Honorable Mirlande Tadal
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Submitted Under Third Circuit LAR 34.1(a)
February 9, 2011
Before: JORDAN, GREENAWAY, JR., and WEIS, Circuit Judges.
(Filed: February 11, 2011)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Djamkhur Vahidov petitions this Court to review a decision by the Board of
Immigration Appeals (“BIA” or “Board”) affirming the decision of an Immigration Judge

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(“IJ”) denying his applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). Vahidov also asserts that the BIA failed to
adequately address the motion for remand that he filed with his appeal to the Board. For
the reasons discussed below, we will deny the petition for review of the BIA’s order
affirming the IJ’s decision, but we will grant the petition for review that relates to
Vahidov’s motion for remand and will return this case to the BIA for further proceedings,
consistent with this opinion.
I. Background
Vahidov is a citizen of Uzbekistan who attempted to enter the United States in
March, 2008 with a fraudulent visa. He was detained upon entry and was not admitted or
paroled into the United States. In April 2008, Vahidov conceded his removability but
applied for asylum, withholding of removal, and protection under the CAT.
Vahidov appeared before the IJ in July 2008, and relied on the following factual
assertions in requesting relief. In December 2004, members of the Uzbekistani police
force interrogated him regarding his brother-in-law, who had sought and received asylum
in the United States. The police beat Vahidov severely enough to give him a concussion
and bruise his jaw and eye, and they demanded $10,000 in exchange for not arresting
him. In December 2005, Vahidov was detained again by the same police officers upon
returning to Uzbekistan after working for six months in Russia. On that occasion, the
officers did not beat him, but they demanded $15,000 in exchange for not arresting him.
To pay off the officers, Vahidov had to borrow money from a local mafia figure. That
individual later threatened Vahidov’s life, when Vahidov had trouble repaying the debt.

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Shortly thereafter, the mafia figure was put into a psychiatric hospital where he remained
for an extended time. During that period, Vahidov did not have any significant problems
in Uzbekistan. Upon release of the mafia figure, however, Vahidov feared for his life, so
he obtained a fraudulent visa to come to the United States.
Based on those claims, Vahidov asserted that he was eligible for asylum and
withholding of removal. Specifically, Vahidov claimed that he was, and would be,
persecuted because of his membership in a particular social group, namely a group
comprised of relatives of his dissident brother-in-law, and because of the political views
that would be imputed to him based upon his relationship to his brother-in-law. He also
claimed he was eligible for relief under the CAT because the government of Uzbekistan
would subject him to torture or acquiesce in his torture by the mafia figure to whom he
still owes money.
On July 28, 2008, the IJ denied Vahidov’s applications for asylum, withholding of
removal, and relief under the CAT. While finding Vahidov to be credible, the IJ
determined that he did not meet the requirements for asylum or withholding of removal
because the evidence did not support a finding that he was persecuted or had a well-
founded fear of future persecution on account of an actual or imputed statutorily
protected ground. Rather, the IJ found that “[t]here were no apparent reasons for the
actions of [the Uzbekistani police] except greed” (App. at 176); that “[t]here was
insufficient evidence in the record to sustain a finding that” Vahidov was “mistreated by
the authorities … on account of his imputed political opinion” (App. at 177); that “the
government did not appear to have any interest in [Vahidov] based on his relationship

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with his brother-in-law” (App. at 180); and that Vahidov’s voluntary return to Uzbekistan
in December 2005 “weigh[ed] heavily against the finding that [he] genuinely feared
persecution” (App. at 178). Furthermore, the IJ rejected Vahidov’s CAT claim because
he failed to show that “he would be subject to torture by any public official in Uzbekistan
at the instigation of, or at the acquiescence of such official.” (App. at 183).
Vahidov appealed the IJ’s decision to the BIA and filed a motion to remand the
case to the IJ for consideration of his fear of future persecution based on his application
for asylum in the United States. On March 5, 2009, the BIA affirmed the IJ’s decision. It
held that the record supported the IJ’s decision that Vahidov failed to establish “the
requisite nexus on the basis of imputed political opinion” and, despite finding that the IJ
“did not address the respondent’s claims as predicated upon membership in a particular
social group,” held that Vahidov’s “claims based upon membership in a particular social
group … also fail[].” (App. at 7-8.) The BIA further concluded that the record supported
the IJ’s finding that Vahidov failed to establish that “an individual in his circumstances is
more likely than not to be subjected to torture as that term is defined by the [CAT].”
(App. at 8.) The BIA did not, however, address Vahidov’s motion to remand.1
Vahidov timely filed his petition in this Court on March 30, 2009.
1 In a footnote, the BIA stated that it was “unnecessary to address the remaining
arguments on appeal.” (App. at 8 n.1.) The Board may have been addressing Vahidov’s
motion to remand with this statement, but that is a matter of surmise.

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II. Discussion2
The present record does not compel us to overturn the BIA’s dismissal of
Vahidov’s appeal regarding his applications for asylum, withholding of removal, and
relief under the CAT. To be granted asylum, an applicant “must establish that race,
religion, nationality, membership in a particular social group, or political opinion was or
will be at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i). While it is obviously and seriously troubling that Vahidov suffered a
beating and extortion at the hands of Uzbekistani police years before coming to the
United States, substantial evidence supports the BIA’s adoption of the IJ’s conclusion
that the beating and extortion were motivated by basic greed and not a statutorily-
protected ground for asylum. 3 Likewise, Vahidov’s fear of imprisonment for obtaining a
fraudulent visa, a possible criminal act in Uzbekistan, is not a protected ground for
asylum. Asylum may be granted for fear of persecution, not prosecution. Saleh v. U.S.
Dept. of Justice, 962 F.2d 234, 239 (2d Cir. 1992) (“Punishment for violation of a
generally applicable criminal law is not persecution.”). Vahidov’s fear of retribution by
2 We have jurisdiction to review a final decision of the BIA under 8 U.S.C.
§ 1252(a). We must sustain the BIA’s decision if it is supported by substantial evidence.
Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 191-92 (3d Cir. 2007). We look to the
decision and reasoning of the IJ, to the extent the BIA deferred to or adopted it;
otherwise, we look to the decision of the BIA. See Chavarria v. Gonzalez, 446 F.3d 508,
515 (3d Cir. 2006); Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). The BIA’s
decision “must be upheld unless the evidence not only supports a contrary conclusion, but
compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
3 That finding mitigates any perceived inconsistencies with the IJ’s finding that
Vahidov was credible yet not eligible for asylum.

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the Uzbekistani mafia figure for failure to repay a debt also is not a protected ground for
asylum. See 8 U.S.C. § 1158(b)(1)(B)(i) (listing protected grounds). As for Vahidov’s
CAT claim, we cannot conclude that a reasonable factfinder would be compelled by the
record before us to find that Vahidov proved by a preponderance of the evidence that he
would suffer torture at the hands of Uzbekistani officials or that they would acquiesce in
his torture by the mafia.
Turning to the BIA’s decision regarding Vahidov’s motion to remand to consider
his fear of future persecution based on his application for asylum in the United States, we
cannot at this point meaningfully comment. The BIA failed to address the motion in its
decision, thus making any review infeasible. While we recognize that Vahidov may face
a high hurdle to convince the BIA to grant his motion, since he failed to raise the same
argument before the IJ, we will not speculate on the BIA’s rationale for not reaching the
motion or its merits. The BIA’s failure to address the motion “make[s] it impossible for
us to meaningfully review its decision.” Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.
2003). Therefore, we must remand to the BIA so that the Board can explain its
reasoning. See id.; see also I.N.S. v. Orlando Ventura, 537 U.S. 12, 16-17 (2002)
(holding that it was clear error for a court of appeals to consider an issue regarding
asylum eligibility before the BIA had “the opportunity to address the matter in the first
instance in light of its own expertise”); Uriostegui v. Gonzales, 415 F.3d 660, 664-65 (7th
Cir. 2005) (remanding to the BIA when the Board failed to adequately adjudicate a
motion to remand pending before it).

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IV. Conclusion
For the foregoing reasons, we will deny Vahidov’s petition for review of the
BIA’s decision on his applications for asylum, withholding of removal, and relief under
the CAT, and we will grant his petition for review of the BIA’s denial of his motion to
remand.

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