Igna v. Holder , 406 F. App'x 114 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAGDALENA IGNA; et al., No. 05-76633
Petitioners, Agency Nos. A079-587-743
A079-587-744
v. A079-587-745
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2010 **
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and LYNN, District
Judge.***
Viorica, Viorel, and Magdalena Igna (the “Ignas”), citizens and natives of
Romania, petition for review of the Board of Immigration Appeals’ (“BIA”)
*
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).
***
The Honorable Barbara M. Lynn, United States District Judge for the
Northern District of Texas, sitting by designation.
affirmance of the Immigration Judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the
petition for review and remand.
The IJ found the Ignas’ testimony credible. He then stated, “Assuming
arguendo the incident took place in Roseani as alleged, the Asylum Officer found
that what happened to the respondent and co-respondent amounted to persecution
and indeed if it happened as they described it, it would be persecution.” Because
the IJ found petitioners credible, the IJ should not have merely “assumed
arguendo” that the incident took place “as alleged”; rather, because petitioners
were credible, the IJ was required to find that the incident happened as they
described it. The IJ found that the incident, as described, was “persecution.”
Further, the IJ noted that past persecution based on religion can be established even
if religious beliefs are only one of several motivations for the persecution suffered.
However, the IJ found that the presumption of a well-founded fear of future
persecution was rebutted because conditions in Romania had changed, and because
the Ignas could reasonably relocate within Romania because persecution was
localized. These findings are not supported by substantial evidence.
The record contradicts the IJ’s finding that country conditions in Romania
had significantly changed. The IJ’s finding was based solely on a three-paragraph
response to an INS internet query, and it ignored contrary evidence in the response
itself, as well as substantial evidence of continuing persecution in the State
Department Reports. Moreover, the IJ failed to conduct an individualized analysis
as to how any changed country conditions might affect the petitioners’ situation.
See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004) (stating that
absent an individualized analysis, a government report on country conditions,
“standing alone, is not sufficient to rebut the presumption of future persecution”
(quoting Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002))).
In finding that the Ignas could reasonably relocate within Romania because
persecution of religious minorities was localized, the IJ disregarded the
presumption that persecution by government actors exists nationwide and ignored
the record evidence of such persecution. See Melkonian v. Ashcroft, 320 F.3d
1061, 1070 (9th Cir. 2003) (applying the presumption and stating that internal
relocation is not automatically reasonable “merely because there are areas in the
country where [the applicant] would not face persecution”). In addition, the IJ
relied on the impermissible assumption that the Ignas could avoid future
persecution by curtailing their religious proselytizing.
Because the Ignas were subjected to past persecution, and the IJ’s finding
that the government rebutted the consequent presumption of the Ignas’ well-
founded fear of future persecution is not supported by substantial evidence, we
remand for the Attorney General’s discretionary determination of whether to grant
relief. Mashiri v. Ashcroft, 383 F.3d 1112, 1123 n.7 (9th Cir. 2004).
PETITION GRANTED; REMANDED.