Kitsoula v. Holder

FILED
NOT FOR PUBLICATION JUN 24 2010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 KITSOULA, No. 06-71636
Petitioner, Agency No. A070-891-093
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 June 18, 2010
San Francisco, California
Before: BYBEE, TYMKOVICH,** and N.R. SMITH, Circuit Judges.
Roman Kitsoula, a native and citizen of Ukraine, petitions for review of a
decision by the Board of Immigration Appeals (BIA) affirming the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Tymkovich, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
judge’s (IJ) denial of his application for asylum.1 The BIA denied the application
because: (1) Kitsoula did not provide sufficient evidence of the identity of his
attackers; (2) there was no evidence that the police were unwilling or unable to
control the persecutors; and (3) the change in country conditions eliminated any
fear of future persecution.
The BIA erred in holding that Kitsoula was required to know the identity of
his persecutors. See Aguilera-Cota v. INS, 914 F.2d 1375, 1380 (9th Cir. 1990).
However, substantial evidence supports the BIA’s finding that Kitsoula did not
establish eligibility for asylum, because he failed to demonstrate the Ukrainian
government was unwilling or unable to control his persecutors. See Nahrvani v.
Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).
Because the BIA’s second ground for denying petitioner’s application was
supported by substantial evidence, we need not address whether the evidence of
changed country conditions was sufficient.
PETITION DENIED.
1
Kitsoula did not raise the IJ’s denial of withholding of removal and relief
under the Convention Against Torture (CAT) before the BIA. We therefore lack
jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.
2004). Kitsoula’s counsel conceded that these issues were not before this panel.