Opinion
NOT FOR PUBLICATION
Argued and Submitted February 6, 2006 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A75-683-750
Before: BEEZER, T.G. NELSON, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Petitioner Hamlet Israyelyan, a native and citizen of Armenia, appeals the Board of Immigration Appeals summary affirmance of the Immigration Judge§ s (§IJ§) denial of asylum. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We grant the petition, reverse the IJ§s eligibility finding, and remand to the Attorney General to exercise his discretion.
I. Substantial evidence does not support the IJ§s determination that Israyelyan failed to show past persecution.
To satisfy his burden to show past persecution, Israyelyan had to prove: (1) that the Armenian government, or forces the government was unwilling or unable to control, (2) persecuted him (3) on account of his race, religion, nationality, membership in a particular social group, or political opinion. Where, as here, there was no explicit adverse credibility finding regarding the petitioner§s testimony, we must accept that testimony as true.
Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004).
Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994).
Israyelyan credibly testified that, on two occasions, the militia, a government-controlled police force, beat him to the point of unconsciousness and threatened to kill him and his family if he did not leave the country. On both occasions, he was hospitalized for several days. The militia also beat his brother, breaking his leg, and beat his mother to death. Based upon Israyelyan§s testimony, no reasonable fact-finder could conclude that the abuse Israyelyan suffered did not rise to the level of persecution. Therefore, Israyelyan satisfied the first two elements .
See Navas v. INS, 217 F.3d 646, 657§58 (9th Cir. 2000); Chand v. INS, 222 F.3d 1066, 1073§74 (9th Cir. 2000).
Regarding the third element, the record does not support the IJ§s conclusion that Israyelyan§s mixed ethnicity was not a motivation for the abuse he suffered.
Israyelyan credibly testified that the militia targeted him because he is half Azeri.
Even if the militia had a mixed motive, the evidence compels the conclusion that
Israyelyan§s mixed ethnicity played a role in the persecution. Therefore,
See Mihalev v. Ashcroft, 388 F.3d 722, 727 (9th Cir. 2004) (citing Navas, 217 F.3d at 656).
Israyelyan established all of the requisite elements of past persecution.
See Knezevic, 367 F.3d at 1211.
II. The government presented no evidence to rebut the presumption of future persecution.
Because Israyelyan established past persecution, he is entitled to a rebuttable presumption that he also has a well-founded fear of future persecution. The government did not present any evidence of changed circumstances in Armenia.
Moreover, the testimony it elicited regarding the possibility of relocation supported Israyelyan §s assertion that relocation was not feasible. Thus, INS v. Ventura does not compel us to remand the issue of whether the government rebutted the presumption. Based upon the existing record, we hold that the government failed to rebut the presumption.
See id . at § 208.13(b)(1)(i)(A)§(B).
537 U.S. 12 (2002).
See Mashiri v. Ashcroft, 383 F.3d 1112, 1123 n.7 (9th Cir. 2004); Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir. 2004).
The petition for review is GRANTED, the IJ§s eligibility determination is REVERSED, and the case is REMANDED so that the Attorney General may exercise his discretion to grant Israyelyan asylum.