Opinion
No. 05-71649.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 26, 2008.
Allan A. Samson, Esq., Jagdip Singh Sekhon, Esq., Sekhon Sekhon, PLC, San Francisco, CA, for Petitioner.
Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Caldwell Harrop, United States Department of Justice, Linda S. Wernery, Esq., William C. Minick, DOJ-U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A071-049-832.
Before: GOODWIN, WALLACE, and TROTT, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sergey Leonidovich Gaysinskiy, a native and citizen of Ukraine, seeks review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir. 1998), and we deny in part and grant in part the petition for review and we remand.
Substantial evidence supports the agency's conclusion that country conditions had changed sufficiently to rebut any presumption of a well-founded fear of future persecution that Gaysinskiy had as a Jew in Ukraine. See id.
As Gaysinskiy failed meet his burden to demonstrate eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).
Because both the IJ and BIA failed to consider Gaysinskiy's CAT claim, we remand for the agency to determine it in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).