Tetyana Lomtyeva v. Jefferson Sessions

FILED NOT FOR PUBLICATION NOV 09 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TETYANA SERGEEVNA LOMTYEVA, No. 14-70424 Petitioner, Agency No. A089-303-425 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 12, 2017 San Francisco, California Before: WALLACE, TASHIMA, and WATFORD, Circuit Judges. Tetyana Sergeevna Lomtyeva, a citizen of Ukraine, petitions for review of the Board of Immigration Appeals’ (“BIA”) order upholding an immigration judge’s (“IJ”) denial of her requests for asylum, withholding of removal, and relief * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition for review. Lomtyeva entered the United States in August 2008 on a temporary visa. She applied for asylum in May 2009. In June 2009, the Department of Homeland Security issued a Notice to Appear, which charged Lomtyeva with removal for having overstayed her visa. In 2012, the IJ denied Lomtyeva’s asylum, withholding, and CAT applications. The IJ found Lomtyeva’s testimony credible, but concluded Lomtyeva had experienced only discrimination, not persecution. The IJ also found that even if Lomtyeva had been persecuted, her return trips to Ukraine undermined a well-founded fear of future persecution. The BIA adopted the IJ’s decision in full, meaning we directly review the IJ’s decision. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). The IJ’s findings of fact are reviewed for substantial evidence. Id. A decision is unsupported by substantial evidence if a reasonable factfinder would be compelled to reach the opposite decision. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To be eligible for asylum, an applicant must be unable or unwilling to return to her home country “because of persecution or a well-founded fear of persecution” on account of a protected ground. 8 U.S.C. § 1101(a)(42)(A). Religion is a protected ground. Id. Persecution must be committed by either the government or 2 “forces the government is either unable or unwilling to control.” Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000) (citation omitted). Past persecution establishes a presumption of a well-founded fear of future persecution. Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). The IJ’s determination that Lomtyeva did not establish past persecution on account of her membership in the Seventh Day Adventist (“SDA”) church is unsupported by substantial evidence. For example, Lomtyeva testified that a mob threw rocks through the windows of the house where Lomtyeva and other SDA members were worshiping. The house was set on fire as the police arrived, but the police did not intervene, told the SDA congregants not to call for help, and said, “We have one united Orthodox Christian church. . . . If you don’t want to go to that church, don’t bother us.” Another time, a group ...

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