Koudriachova v. Gonzales, No. 03-4811 (2d Cir. 2007)

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03-4811(L) Koudriachova v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2006 (Argued October 30, 2006 Decided June 26, 2007) Docket Nos. 03-4811(L), 03-41229(Con) _______________ ELENA KOUDRIACHOVA, ALEXANDRE KOUDRIACHOV, & ILIA KOUDRIACHOV, Petitioners, v. ALBERTO R. GONZALES, Attorney General, Respondent. _______________ Before: CARDAMONE, WALKER, and RAGGI, Circuit Judges. _______________ Petitioner Alexandre Koudriachov petitions for review of the March 26, 2003 order of the Board of Immigration Appeals (BIA) dismissing his application for asylum. Koudriachov also petitions for review of the BIA's December 12, 2003 order denying his motion to reconsider its March 26, 2003 decision. Petition granted, in part, and dismissed, in part. _______________ MICHAEL P. DiRAIMONDO, Melville, New York (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, DiRaimondo & Masi, LLP, Melville, New York, of counsel), for Petitioners. Norman Cairns, Assistant United States Attorney, Albuquerque, New Mexico (David C. Iglesias, United States Attorney, District of New Mexico, Albuquerque, New Mexico), filed a brief for Respondent. 1 2 CARDAMONE, Circuit Judge: Petitioner Alexandre Koudriachov (petitioner or appellant) 3 seeks review of a March 26, 2003 decision and order of the Board 4 of Immigration Appeals (BIA or Board), denying his application 5 for asylum and withholding of removal. 6 A 70 652 782 (B.I.A. Mar. 26, 2003), aff'g No. A 70 652 782 7 (Immig. Ct. N.Y. City Feb. 22, 1999). 8 9 In re Koudriachova, No. The BIA, in a nonprecedential decision by a single member of the Board, dismissed petitioner's appeal because it found he had 10 failed to show that he had been persecuted, or that he had a 11 well-founded fear of future persecution, on account of any of the 12 grounds protected by the Immigration and Nationality Act (INA). 13 Koudriachov also seeks review of the BIA's December 12, 2003 14 order denying his motion to reopen its March 26, 2003 decision. 15 In re Koudriachova, No. A 70 652 782 (B.I.A. Dec. 12, 2003). 16 Because the BIA's March 26, 2003 decision dismissing 17 petitioner's appeal contains significant ambiguities and 18 potential misunderstandings of the relevant legal standards, we 19 grant the petition for review and remand to the BIA for 20 additional investigation or explanation. 21 motion to reopen the December 12, 2003 order of the BIA as moot. 22 BACKGROUND 23 We dismiss petitioner's The BIA held that Koudriachov was ineligible for asylum even 24 if his testimony before the immigration judge (IJ) and in his 25 asylum application was wholly credible. 26 purposes of this appeal, we accept petitioner's account of the 2 Consequently, for 1 events leading up to his application for asylum as truthful and 2 accurate. 3 Cir. 2005). 4 See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Koudriachov is a native of the former United Soviet 5 Socialist Republic (Soviet Union or USSR). In his testimony 6 before the IJ, petitioner provided a harrowing and at times 7 brutal account of his experiences in the Soviet military and as a 8 neophyte Russian intelligence agent. 9 Soviet military began when he was 18 and, as part of a period of 10 mandatory military service, he was drafted into the USSR Ministry 11 of Internal Affairs (MVD). 12 not a part of the regular Soviet army, but rather comprised a 13 special group of troops responsible for guarding secret military 14 objects and locations, controlling riots in prisons and student 15 towns, and fulfilling special assignments relating to terrorism 16 and saboteur groups. 17 responsibilities, they were given extensive physical, 18 psychological, and ideological conditioning. 19 objectionable many aspects of the MVD training program and 20 operations. 21 convicted criminals were brought to the MVD base so that soldiers 22 could practice combat techniques on them. 23 of his moral misgivings regarding these practices, Koudriachov 24 resolved not to pursue a military career. His encounters with the Petitioner explained that the MVD was To prepare MVD soldiers for their unique Koudriachov found In particular, he believes it morally wrong that Partially as a result 25 He completed his term of military service in 1983 and 26 subsequently enrolled at the Leningrad Institute of Meteorology 3 1 (Institute) in what is now the City of St. Petersburg. 2 his participation in an international student festival, 3 Koudriachov was summoned to the regional headquarters of the 4 Komsomol, the youth wing of the Communist Party. 5 with a Komsomol official who ordered him to write reports on his 6 interactions with foreigners. 7 such reports, but agreed to do it after being threatened with 8 expulsion from the Institute. 9 never explained, though petitioner suspected they were used to 10 obtain personal information about foreigners for the purpose of 11 blackmailing them. 12 because of his previous training with the Ministry of Internal 13 Affairs. 14 Following There he met Koudriachov objected to writing The purpose of the reports was He believes he was selected for this task In his third year at the Institute Koudriachov was ordered 15 to report to an address, No. 4 Liteynyi, which was known to be 16 the headquarters of the KGB Intelligence Service in Leningrad 17 (St. Petersburg). 18 Vitaly Sergeyevich. 19 whether Sergeyevich contacted Koudriachov on behalf of the MVD or 20 the KGB. 21 this opinion without resolving this factual question. 22 There he met an individual referred to as There is some confusion in the record as to We will refer to the agency as the KGB for purposes of Sergeyevich became Koudriachov's contact within the KGB. 23 their initial meeting, Sergeyevich informed the petitioner that 24 he had been selected to work as a spy for the Soviet government 25 and that he would eventually be attending a special school in In 4 1 Moscow to prepare him for this work. 2 to become a KGB agent but realized he had no choice. 3 Koudriachov had no desire After graduating from the Meteorology Institute in 1989, 4 petitioner received an assignment from Sergeyevich to begin work 5 at a factory that employed many foreign specialists. 6 was told that he would work there for a few years before 7 attending spy school. 8 employment at the factory he met regularly with Sergeyevich to 9 report technical and personal information he had obtained from Koudriachov Petitioner testified that throughout his 10 his co-workers. 11 his co-workers in this way, he continued to divulge the 12 information because Sergeyevich threatened him by saying he would 13 be drafted into the army or subject to violence were he to 14 refuse. 15 While Koudriachov thought it immoral to betray As the date for petitioner's departure to spy school drew 16 near, he resolved to defect from the KGB and flee with his family 17 to the United States. 18 Koudriachov tried to distance himself from Sergeyevich's 19 surveillance by moving to a different address in St. Petersburg. 20 However, very soon after he moved, he was attacked in the street 21 by two men who Koudriachov believes were sent by Sergeyevich. 22 Indeed, the day after the attack, the petitioner was summoned to 23 Sergeyevich's office and asked about his change of residence. 24 In preparation for this momentous step, On September 20, 1992 Koudriachov and his family entered the 25 United States on visitor visas. In 1993 Koudriachov's wife, 26 Elena, applied for asylum and withholding of removal. 5 1 Koudriachov was selected for a Diversity Visa in April 1998 and 2 became eligible for adjustment of status to legal permanent 3 resident. 4 required him to request that the Russian government reissue or 5 register his passport, however, Koudriachov decided that he could 6 not pursue his adjustment application and had to pursue an asylum 7 claim instead. 8 asylum application for that of his wife's on October 28, 1998. 9 On February 22, 1999 the IJ rejected the petitioner's 10 application for asylum and withholding of removal, finding that 11 he was not credible. 12 BIA. 13 assumed the petitioner was credible, but found he had nonetheless 14 failed to establish that he was persecuted or fears persecution 15 on account of any ground protected under the INA. 16 later, petitioner filed a timely motion to reopen with the BIA in 17 which he offered new evidence in the form of an expert affidavit 18 of a former KGB intelligence officer, Yuri Shvets, and, for the 19 first time, requested relief under CAT. 20 BIA denied the motion to reopen. 21 review of the BIA's dismissal of his appeal from the IJ's 22 February 22, 1999 decision and the BIA's denial of his motion to 23 reopen. Once he realized that his adjustment application The IJ allowed Koudriachov to substitute his Koudriachov appealed the decision to the On March 26, 2003 the BIA dismissed the appeal. The BIA Ninety days On December 12, 2003 the Koudriachov now petitions for We grant the petition in part, and dismiss in part. 6 1 DISCUSSION 2 3 I Overview of Applicable Law Where, as here, the BIA does not adopt the IJ's decision to 4 any extent, we review only the decision of the BIA. See Chen v. 5 Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 513 (2d 6 Cir. 2006). 7 law as well as its application of the law to the facts. 8 Tanov v. INS, 443 F.3d 195, 198 (2d Cir. 2006). 9 interprets ambiguous language in the INA in a precedential We review de novo the BIA's interpretation of the See When the BIA 10 opinion issued by a three judge panel, we defer to that 11 interpretation so long as it is reasonable. 12 Gonzales, 473 F.3d 55, 56-58 (2d Cir. 2007) (per curiam); Chevron 13 U.S.A. Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 843- 14 44 (1984). 15 evidence standard and are upheld when they are supported in the 16 record by reasonable, substantial, and probative evidence. 17 Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005). 18 See Rotimi v. Factual findings are reviewed under the substantial See To qualify as a "refugee," an asylum applicant must 19 establish that he or she has been persecuted in the past, or has 20 a well-founded fear of persecution in the future, on any one of 21 five statutorily protected grounds. 22 Gonzales, 464 F.3d 276, 281 (2d Cir. 2006). 23 include persecution on account of (1) race, (2) religion, (3) 24 nationality, (4) membership in a particular social group, or (5) 25 political opinion. 26 Koudriachov asserts that he is eligible for asylum because he See Edimo-Doualla v. 8 U.S.C. § 1101(a)(42). 7 These grounds In this case, 1 faces persecution in Russia on account of his membership in the 2 particular social group of defected KGB intelligence agents and 3 on account of political opinions that will be imputed to him. 4 Such fear may be well-founded even if there is only a slight, 5 though discernible, chance of persecution. 6 270. 7 II 8 Membership in a Particular Social Group A. 9 Yan Chen, 417 F.3d at General Principles We have observed that of the five grounds protected under 10 the INA, membership in a "particular social group" is the least 11 well-defined on its face. 12 F.3d 62, 66-67 (2d Cir. 2006). 13 of the INA does not shed much, if any, light on the meaning of 14 the phrase, courts have struggled to apply it. 15 12 F.3d 1233, 1239 (3d Cir. 1993) (Alito, J.) (detailing 16 legislative history of particular social group language and 17 noting lack of evidence regarding legislative aim). 18 to say that the resulting applications establishing refugee 19 status on this ground have not been entirely consistent. 20 the groups that the various courts of appeals have found, on the 21 one hand, to qualify as particular social groups under the INA 22 are: 23 forced marriages are considered valid and enforceable, Hong Ying 24 Gao, 440 F.3d at 70; former employees of Columbia's Attorney 25 General's Office, Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th 26 Cir. 2006); the educated, landowning class of cattle farmers See Hong Ying Gao v. Gonzales, 440 Because the legislative history See Fatin v. INS, It is fair Among women sold into marriage who live in a part of China where 8 1 targeted by the Revolutionary Armed Forces of Columbia, Tapiero 2 de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); 3 Somalian females, Mohammed v. Gonzales, 400 F.3d 785, 798 (9th 4 Cir. 2005); and gay men with female sexual identities in Mexico, 5 Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000). 6 On the other hand, the following groups have been found not to 7 constitute particular social groups: 8 prosecutors who exposed government corruption, Pavlyk v. 9 Gonzales, 469 F.3d 1082, 1088 (7th Cir. 2006); anonymous uncorrupt Ukrainian 10 noncriminal informants, Castillo-Arias v. U.S. Att'y Gen., 446 11 F.3d 1190, 1197 (11th Cir. 2006); tattooed youth, Castellano- 12 Chacon v. INS, 341 F.3d 533, 549 (6th Cir. 2003); and children 13 from Northern Uganda, Lukwago v. Ashcroft, 329 F.3d 157, 171-72 14 (3d Cir. 2003). 15 16 B. BIA's Test In Matter of Acosta In 1985, the BIA undertook to clarify the meaning of the 17 phrase particular social group in the seminal decision of Matter 18 of Acosta, 19 I. & N. Dec. 211, 232-34 (BIA 1985), overruled in 19 part on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 20 (1987). 21 social group is one unified by some characteristic that is either 22 (1) "beyond the power of an individual to change" or (2) "so 23 fundamental to individual identity or conscience that it ought 24 not be required to be changed." 25 Dec. at 233. 26 might be an innate one such as sex, color, or kinship ties, or in In Matter of Acosta, the BIA explained that a particular Matter of Acosta, 19 I. & N. The BIA explained that "[t]he shared characteristic 9 1 some circumstances it might be a shared past experience such as 2 former military leadership or land ownership." Id. 3 Recently, in In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), the 4 BIA reaffirmed the Acosta test and provided further clarification 5 regarding its proper application. 6 observed that Acosta does not require "a voluntary associational 7 relationship among group members" nor does it require an element 8 of "cohesiveness or homogeneity among group members." 9 956-57. See id. at 955-61. It Id. at However, a group's "visibility" -- meaning the extent to 10 which members of society perceive those with the relevant 11 characteristic as members of a social group -- is a factor in 12 determining whether it constitutes a particular social group 13 under the INA. 14 Id. at 957, 959-60. With regard to groups united by some shared past experience, 15 In re C-A- reiterated that shared past experiences do constitute 16 an immutable characteristic because a past experience cannot be 17 undone. 18 Dec. 658, 662 (BIA 1988) (stating that an applicant's status "as 19 a former member of the national police" was "in fact an immutable 20 characteristic" that could serve as the basis of a particular 21 social group). 22 membership in some group united by a shared past experience will 23 qualify for asylum. 24 member of a particular social group -- and not some other factor 25 -- must be the central reason why that individual is targeted for 26 persecution. See id. at 958; see also Matter of Fuentes, 19 I.& N. Yet, not all applicants who can point to Rather, an asylum applicant's status as a Thus, the BIA indicated that an individual who is 10 1 targeted due to her status as a former police officer may be 2 eligible for asylum as a member of the particular social group of 3 former police officers. 4 59; see also Matter of Fuentes, 19 I. & N. Dec. at 662. 5 former police officer singled out for reprisal because of her 6 role in disrupting particular criminal activity would likely not 7 be eligible for asylum. 8 the second scenario, the persecution the applicant fears is not a 9 result simply of her status as a former police officer, but See In re C-A-, 23 I. & N. Dec. at 958But, a In re C-A-, 23 I. & N. Dec. at 959. In 10 rather is a result occasioned by other factors more specific to 11 the particular applicant. 12 In sum, the BIA has adopted a broad definition of particular 13 social group, one that encompasses groups united by a shared past 14 experience. 15 ultimately qualifies for asylum, courts must examine closely 16 whether the persecution the applicant fears derives primarily 17 from his or her status as a member of that particular social 18 group or whether it derives primarily from some other factor. 19 20 Nonetheless, in determining whether an applicant C. BIA's Test is Reasonable The BIA's interpretation of the ambiguous phrase particular 21 social group is reasonable and merits our deference under 22 Chevron. 23 BIA in Acosta adopted a reasonable interpretation of the 24 statutory language); see also Ucelo-Gomez v. Gonzales, 464 F.3d 25 163, 171 (2d Cir. 2006) (per curiam) (observing that the BIA in 26 Acosta provided guidance as to what constitutes a particular See Hong Ying Gao, 440 F.3d at 69-70 (stating that the 11 1 social group). Our decision in Gomez v. INS, 947 F.2d 660 (2d 2 Cir. 1991), has been interpreted by some other circuits as laying 3 down a test for what constitutes a particular social group that 4 is at odds with the Acosta test. 5 422 F.3d 1187, 1199 (10th Cir. 2005); Castellano-Chacon, 341 F.3d 6 at 546 (6th Cir. 2003); Mya Lwin v. INS, 144 F.3d 505, 512 (7th 7 Cir. 1998). 8 reading of Gomez is one that is consistent with Acosta. 9 Ying Gao, 440 F.3d at 69-70. See, e.g., Niang v. Gonzales, However, we have recently clarified that the best See Hong Gomez involved a Salvadorian woman 10 who applied for asylum on the grounds that she had been 11 repeatedly raped as a youth by Guerrilla forces. 12 F.2d at 662. 13 indication that [the petitioner] will be singled out for further 14 brutalization on [the basis of her past victimization]." 15 664. 16 general statement of the law should not be read "as setting an a 17 priori rule for which social groups are cognizable." 18 Gao, 440 F.3d at 69. 19 for the proposition that an individual will not qualify for 20 asylum if he or she fails to show a risk of future persecution on 21 the basis of the membership claimed in the particular social 22 group. 23 BIA's reasonable interpretation of the particular social group 24 statutory language and accords with the approach taken by our 25 sister circuits. 26 2006); Thomas v. Gonzales, 409 F.3d 1177, 1184-87 (9th Cir. 2005) See Gomez, 947 We denied her petition because there was "no Id. at In Hong Ying Gao, we stated that broad dicta in Gomez's Id. Hong Ying Rather, Gomez should be read as standing This reading of Gomez gives proper deference to the See Castillo-Arias, 446 F.3d at 1196 (11th Cir. 12 1 (en banc), vacated on other grounds, 547 U.S. 183 (2006) (per 2 curiam); Niang, 422 F.3d at 1199 (10th Cir. 2005); Silva v. 3 Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005); Castellano-Chacon, 341 4 F.3d at 546-48 (6th Cir. 2003); Mya Lwin, 144 F.3d at 512 (7th 5 Cir. 1998); Fatin, 12 F.3d at 1239-40 (3d Cir. 1993). 6 D. 7 Acosta Test Applied to the Present Case We analyze now whether the BIA correctly applied the law in 8 this case by looking at whether the BIA's decision here was 9 compatible with its own reasonable and precedential decision in 10 Acosta. 11 to a particular social group because the evidence did not 12 establish that defected KGB agents maintain "any associational 13 relationship" or share "any recognizable and discrete 14 characteristic." 15 somewhat unclear, it appears that the BIA may have misapplied its 16 own Acosta test in reaching this determination. 17 observation that Koudriachov presented no evidence that defected 18 KGB agents associate with one another is correct; however, it is 19 also not on point. 20 required under Acosta. 21 A-: 22 relationship' among group members." 23 at 956-57. 24 Here, the BIA concluded that Koudriachov did not belong While the basis of the BIA's holding is The Board's No such associational relationship is As the BIA recently clarified in In re C- "Under Acosta, we do not require a 'voluntary associational In re C-A-, 23 I. & N. Dec. The Board also noted that the group of defected KGB agents 25 lack "any recognizable and discrete characteristic" but failed to 26 explain why the shared past experience of having served in and 13 1 defected from the KGB does not constitute such a characteristic. 2 Under Acosta and In re C-A-, it is clear that a shared past 3 experience, such as prior military leadership, can be the type of 4 immutable characteristic that will characterize a particular 5 social group. 6 "shared past experience such as former military leadership" as an 7 example of a "shared characteristic" that unites a particular 8 social group); In re C-A-, 23 I. & N. Dec. at 958. 9 additional requirement that members of a group share an "element See Acosta, 19 I. & N. Dec. at 233 (listing a 10 of 'cohesiveness' or homogeneity." 11 There is no In re C-A-, 23 I. & N. Dec. at 957. 12 It is not our task to determine, in the first instance, 13 whether the group of defected KGB agents constitute a particular 14 social group. 15 mandate in Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 16 (2006) (per curiam), we remand to the BIA for additional 17 investigation or explanation with respect to the question of 18 whether defected KGB agents form a particular social group under 19 the INA. 20 except in rare circumstances, is to remand to the agency" for an 21 initial determination of whether a group of persons falls within 22 the statutory term "particular social group"). 23 conclude that defected KGB agents -- despite their shared past 24 experiences -- do not constitute a particular social group. 25 if such is the Board's finding, it must make its reasons for that 26 finding clear and explain how the finding comports with Rather, in accordance with the Supreme Court's See id. at 1615 (stating that "the proper course, 14 The Board may But, 1 established BIA precedent so as to afford meaningful appellate 2 review. 3 2005) ("Despite our generally deferential review of IJ and BIA 4 opinions, we require a certain minimum level of analysis from the 5 IJ and BIA opinions denying asylum, and indeed must require such 6 if judicial review is to be meaningful."). See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 7 Importantly, if the BIA finds that defected KGB agents do 8 constitute a particular social group under the INA, that alone 9 will not establish Koudriachov's eligibility for asylum. Rather, 10 petitioner must establish two additional elements: 11 has a well-founded fear of persecution, and; (2) that he is a 12 target of persecution primarily on account of his status as a 13 member of the group of defected KGB agents and not on account of 14 some other factor. 15 C-A-, 23 I. & N. Dec. at 958-59. 16 17 III (1) that he See 8 U.S.C. § 1101(a)(42)(A); see also In re Persecution on the Basis of a Political Opinion The Board also found appellant had failed to demonstrate 18 that he has a reasonable fear of persecution on account of a 19 political opinion. 20 political opinion, an asylum applicant must show that the 21 persecution arises from his or her own actual or imputed 22 political opinion. 23 (1992); Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005). 24 It is not sufficient that the persecutor acts simply out of a 25 generalized political motive. 26 Rather, "an applicant for refugee status must establish a fear of To establish persecution on account of a See INS v. Elias-Zacarias, 502 U.S. 478, 482 Elias-Zacarias, 502 U.S. at 482. 15 1 reprisal that is different in kind from a desire to avoid the 2 exactions (however harsh) that a foreign government may place 3 upon its citizens." 4 751 (2d Cir. 1995), abrogated on other grounds by statute, 8 5 U.S.C. § 1101(a)(42). 6 Xin-Chang Zhang v. Slattery, 55 F.3d 732, As noted, we have adopted the widely endorsed proposition 7 that "an imputed political opinion, whether correctly or 8 incorrectly attributed, can constitute a ground of political 9 persecution within the meaning of the Immigration and Nationality 10 Act." 11 question is not whether an asylum applicant subjectively holds a 12 particular political view, but instead whether the authorities in 13 the applicant's home country perceive him to hold a political 14 opinion and would persecute him on that basis. 15 Chun Gao, 424 F.3d at 129. We explained that the relevant See id. In this case, the BIA ruled as follows: 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Although the respondent testified that [Sergeyevich] believed erroneously that he wanted to defect, nothing in the respondent's testimony revealed that [Sergeyevich] attributed any political opinion to the respondent's desire. Consequently, the respondent failed to establish that he held a political opinion or that one was imputed to him. For that reason, the respondent failed to establish a nexus between the harm he suffered and his political opinion and thereby failed to establish eligibility for relief on the basis of his political opinion. From this language, it appears the Board may have inappropriately 31 limited its analysis to the question of whether Koudriachov was 32 persecuted, while in Russia, on account of his political opinion. 33 This is not the claim petitioner makes. 16 Koudriachov has 1 consistently maintained that he will be persecuted if he returns 2 to Russia because the authorities will view his defection from 3 the KGB as a sign of disloyalty to the established regime. 4 explained: 5 They consider them traitors to their mother land." He "[T]hese people don't forgive the ones who defect. 6 Moreover, the BIA's conclusion that nothing in petitioner's 7 testimony demonstrated that Sergeyevich attributed any political 8 opinion to Koudriachov's desire to defect suggests that it 9 focused only on whether Sergeyevich imputed a political opinion 10 to petitioner. 11 He does not aver that his fear of persecution is limited to 12 Sergeyevich; rather, Koudriachov fears that, if returned to 13 Russia, other government actors will subject him to persecution 14 on account of the adverse political opinion they will impute to 15 him. 16 purpose of allowing the Board to determine whether Koudriachov 17 has a well-founded fear of persecution on account of any 18 political opinion that may be imputed to him because of his 19 defection. 20 21 Koudriachov's claim, however, is not that narrow. Consequently, we must remand this case for the additional CONCLUSION For the foregoing reasons, we grant the petition for review 22 and remand this case to the BIA for additional explanation and 23 investigation into (1) whether the group of defected KGB agents 24 constitute a particular social group under the INA and whether 25 petitioner has a well-founded fear of future persecution based on 26 his membership in such a group, and (2) whether the petitioner 17 1 has a well-founded fear of persecution on account of any 2 political opinions that may be imputed to him as a result of his 3 defection. 4 2003 decision denying the motion to reopen is dismissed as moot. 5 The petition for review of the BIA's December 12, Petition granted in part, and dismissed in part. 18

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