Petrosyan v. Holder , 382 F. App'x 592 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROMAN PETROSYAN, No. 06-72642
Petitioner, Agency No. A097-103-193
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Roman Petrosyan, a native of the former Soviet Union and a citizen of
Armenia and Azerbaijan, petitions for review of the Board of Immigration
Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision
denying his application for asylum and withholding of removal. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Zehatye
v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we grant the petition for
review and remand.
Substantial evidence supports the IJ’s finding that Petrosyan’s conscription
into the Armenian military did not constitute past persecution on account of a
protected ground. See id. at 1187 (forced conscription or punishment for evasion
of military duty generally is not persecution).
The agency also found that the repeated beatings, broken nose, ethnic slurs,
threats and other mistreatment Petrosyan suffered in the Armenian military did not
rise to the level of persecution and were not on account of his Azeri heritage.
These findings are not supported by substantial evidence. See Duarte de Guinac v.
INS, 179 F.3d 1156, 1161-62 (9th Cir. 1999) (repeated beatings and verbal assaults
during petitioner’s military service rose to the level or persecution); see also
Mihalev v. Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004) (petitioner need not
establish abuse more severe than others suffered to establish abuse “on account of”
ethnicity).
Because a showing of past persecution entitles a petitioner to a presumption
of both a well-founded fear and clear probability of future persecution, see 8
C.F.R. §§ 1208.13(b)(1) & 1208.16(b)(1)(i), and because the agency did not
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analyze Petrosyan’s claim of future fear under this presumption, we grant the
petition for review and remand for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Finally, in light of our disposition, we do not reach Petrosyan’s due process
contention.
PETITION FOR REVIEW GRANTED; REMANDED.
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