Avanesova v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION MAY 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANNA AVANESOVA, No. 06-70711
Petitioner, Agency No. A097-119-658
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, Senior District
Judge.**
Anna Avanesova, a native and citizen of Georgia, seeks review of a decision
of the Board of Immigration Appeals (BIA) that affirmed an Immigration Judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
(IJ’s) denial of asylum. Having jurisdiction under 8 U.S.C. § 1252(a), we grant the
petition and remand for further proceedings.
Because the BIA’s decision adopted and affirmed the IJ’s decision while
adding its own analysis, we review both decisions. Mousa v. Mukasey, 530 F.3d
1025, 1027 (9th Cir. 2008). But where, as here, “the BIA’s decision is silent on the
issue of credibility, despite an IJ’s explicit adverse credibility finding, we may
presume that the BIA found the petitioner to be credible . . . .” Krotova v.
Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005). We therefore assume petitioner’s
testimony and application to be truthful and review for substantial evidence the
determination that Avanesova had demonstrated neither past persecution nor an
independently well-founded fear of future persecution. Lolong v. Gonzales, 484
F.3d 1173, 1178 (9th Cir. 2007) (en banc).
I. Past Persecution
As the BIA recognized, the kidnaping and gang rape Avanesova suffered
rise to the level of persecution. See, e.g., Shaofera v. INS, 228 F.3d 1070, 1074
(9th Cir. 2000). Private persons committed this crime, and according to the BIA
and IJ, Avanesova did not demonstrate that the Georgian government was
unwilling or unable to control them.
2
Avanesova failed to report the crime successfully, despite her efforts. That
failure, however, is not the end of the inquiry if she “can convincingly establish
that doing so would have been futile or have subjected [her] to further abuse.”
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006).
Here, every contact that Avanesova and her mother, Isolda, had with the
Georgian government demonstrated its active hostility or passive unwillingness to
help. Rather than punishing the boys who had been yelling ethnic slurs and
throwing rocks into Avanesova’s apartment, the police responded by invading and
trashing the apartment while kicking Avanesova and her mother and calling them
“[d]irty Abkhazians, dirty Armenians,” and saying that “mixtures ha[d] no right to
live [in] Georgia.” The threats and attacks that Avanesova and Isolda received
after Isolda reported corruption in the government (a beating, menacing phone
calls, and an interrogation in a college dean’s office) could only have come from
within the government, and were explicitly motivated by ethnicity. Rather than
demonstrating the Georgian government’s willingness to punish ethnically
motivated crime, the corruption prosecution demonstrates the opposite. The
defense attorney accused Isolda of espionage on behalf of Abkhazia, of
undermining the Georgian government, and of hiding her ethnic origin. Neither
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the prosecutor nor the presiding judge was willing to stop this harassment. The
prosecution was then dismissed for “lack of sufficient evidence.”
Thus, there is no record evidence that the Georgian government effectually
responded to any legal complaint that Avanesova and her mother brought to its
attention. Rather, on every occasion it either actively thwarted their legal remedies
on account of their ethnicity or consciously refused to stop private persons who
discriminated against them. Only conjecture and speculation can support a finding
that the government would have effectually responded had Avanesova reported her
kidnaping and rape, and “conjecture and speculation can never replace substantial
evidence.” Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000). We therefore grant
Avanesova’s petition on the issue of past persecution and remand to the agency for
further proceedings under a shifted burden of proof. 8 C.F.R. § 208.13(b)(1).
II. Well-Founded Fear of Future Persecution
Avanesova contends that there is a pattern or practice of persecution against
Armenians in Georgia, but substantial evidence supports the agency’s contrary
finding. At most the record shows the prevalence of certain kinds of
discrimination or disfavor rather than a pattern or practice of persecution. See
Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).
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Nevertheless, neither the BIA nor the IJ engaged in “what has come to be
called . . . ‘disfavored group’ analysis.”1 Id. at 1062. On remand, the agency
should consider in the first instance whether Avanesova is eligible for asylum
under the theory that ethnic Armenians are a disfavored group in Georgia. See
id. at 1067 (explaining the proper mode of disfavored-group analysis). We note
that the record also contains support for the proposition that Abkhazians and
persons who like Avanesova are of mixed ethnicity are disfavored groups.
PETITION GRANTED; REMANDED.
1
We have jurisdiction over Avanesova’s disfavored-group argument
because her pattern-or-practice claim subsumes it. See Wakkary, 558 F.3d at 1064(explaining that the two theories are different in degree, not in kind); see also
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (the exhaustion
requirement applies to claims rather than arguments).
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