Giorgi Asanidze v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
JUN 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GIORGI ASANIDZE, No. 15-71186
Petitioner, Agency No. A089-703-571
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 16, 2018
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and GLEASON,** District Judge.
Giorgi Asanidze appeals the Board of Immigration Appeals’ denial of his
applications for asylum, withholding of removal, and Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
protection, which were denied by an immigration judge (“IJ”). We have
jurisdiction under 8 U.S.C. § 1252. We review de novo the Board’s determinations
of purely legal questions. Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999).
Questions of fact are reviewed under the substantial evidence standard. See Sinha
v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009). The Board’s determination must
be upheld if “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(citations omitted); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary . . . .”).
To establish past persecution, an alien must show that he experienced: (1)
incidents that rise to the level of “persecution”; (2) that were on account of a
protected ground; and (3) that were inflicted by the government or an individual
that the government is unable or unwilling to control. Truong v. Holder, 613 F.3d
938, 941 (9th Cir. 2010). “Even when a single incident does not rise to the level of
persecution, ‘the cumulative effect of several incidents may constitute
persecution.’” Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005) (quoting
Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996)). Affirming the IJ, the Board
concluded that Asanidze’s harm had not risen to the level of past persecution. We
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find that any reasonable adjudicator would be compelled to conclude to the
contrary.
Asanidze testified that as a result of his Ossetian ethnicity, he suffered
harassment, discrimination, and physical violence at various points in his life, with
these instances increasing in frequency in 2007 and 2008.1 The IJ found Asanidze
to be a credible witness.
Asanidze described numerous instances of harassment, including an attack
on his family’s home in January 2007, during which a group of people threw
stones at the family’s windows and yelled curses at them. During 2007, Asanidze’s
family received threatening phone calls in which they were told to leave Georgia.
Asanidze’s father was threatened at work; he eventually fled to Moscow, where he
was killed, although the cause of his death remains unknown. Asanidze and his
mother struggled to find work as a result of discrimination. Asanidze also suffered
physical violence on two different occasions at the hands of individuals who
targeted him because of his Ossetian ethnicity. Throughout this time, calls to the
police were repeatedly met with inaction and suggestions that Asanidze and his
family leave the country. Following the last incident, Asanidze fled to the United
1
Ossetians are an ethnic minority in Georgia. Tensions between Georgians
and Ossetians escalated into violent conflict in 2008.
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States, arriving in May 2008.
We find no reasonable adjudicator could find that these facts do not
constitute past persecution. First, Asanidze and his family were subjected to
several violent attacks because they were Ossetian. Asanidze himself was beaten
on several occasions because of his ethnicity. Second, the threats made to Asanidze
and his family members are pertinent to whether there was past persecution, even if
not sufficient in themselves. See Marcos v. Gonzales, 410 F.3d 1112, 1118 (9th
Cir. 2005). Third, the Board overlooked Asanidze’s subjection to economic
persecution, which “has been credited as an important part of asylum claims on
numerous occasions.” Chand v. INS, 222 F.3d 1066, 1074 (9th Cir. 2000) (citing
Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998)); Gonzalez v. INS, 82 F.3d
903, 910 (9th Cir. 1996); Desir v. Ilchert, 840 F.2d 723, 727–28 (9th Cir. 1988);
Samimi v. INS, 714 F.2d 992, 995 (9th Cir. 1983). Asanidze testified that he
struggled to find a job based on his ethnicity and that, even after obtaining
employment, he was let go on account of his ethnicity. We have held that “purely
economic harm can rise to the level of persecution where there is ‘a probability of
deliberate imposition of substantial economic disadvantage’ upon the applicant on
account of a protected ground.’” Chand, 222 F.3d at 1074 (quoting Kovac v. INS,
407 F.2d 102, 107 (9th Cir. 1969)).
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Fourth, the IJ acknowledge that Asanidze “demonstrated, at least with
respect to the past harm that he suffered, that police were not willing to protect
him.” Asanidze establishes convincingly that police were not interested in
protecting his family, in particular, from ethnicity-based harassment and violence.
See Korablina, 158 F.3d at 1042 (finding past persecution when petitioner
“testified credibly that the police were not interested in protecting Jews” from anti-
Semitic hoodlums). Although Asanidze and his family members were not
physically assaulted by the police, the unwillingness of the police to intervene and
their suggestions that the Ossetian family simply leave the country reinforced the
persecution they suffered at private hands.
Asanidze’s clear evidence of economic persecution, combined with the
repeated instances of harassment and physical violence and the unwillingness of
the police to intervene, compels the conclusion that Asanidze established past
persecution that the government was unable or unwilling to control. See Korablina,
158 F.3d at 1044 (“The key question is whether, looking at the cumulative effect of
all the incidents a petitioner has suffered, the treatment [he] received rises to the
level of persecution.”).
The IJ acknowledged that the past persecution issue was a “close
question.”We hold the Board failed to adequately consider the evidence of
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economic persecution, which in combination with the persistent pattern of
harassment and violence provides compelling evidence of past persecution.
Accordingly, we grant the petition for review.
As Asanidze suffered past persecution, he is entitled to a presumption of a
well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(1).
Accordingly, we remand for the agency to determine whether the government can
rebut that presumption by a preponderance of the evidence. Mamouzian v.
Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004).
PETITION GRANTED AND REMANDED.
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