Rusak

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATALLIA VALERIEVNA RUSAK, No. 08-70746 Petitioner, Agency No. v. A095-878-063

ERIC H. HOLDER, JR.,

Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 7, 2013—Pasadena, California

Filed August 22, 2013

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Edward R. Korman,* Senior District Judge.

Opinion by Judge Korman; Dissent by Judge Rawlinson

* The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation. SUMMARY**

Immigration

The panel granted a petition for review of the Board of Immigration Appeals’ decision denying asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Belarus because petitioner established past persecution based on the abuses her Seventh Day Adventist parents suffered while she was a child and the government failed to rebut the presumption of future…

dissenting:

I respectfully dissent from the majority’s decision to remand this case to the Board of Immigration Appeals (BIA) for further proceedings.

It is important to keep in mind our standard of review for BIA decisions. We must affirm BIA rulings unless the evidence compels a different outcome. See Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir.2003) (“This case like many others turns on the standard of review. Perhaps the IJ could have found past persecution on this record, but ... the IJ was not compelled to find past persecution.... ”).

The language of the majority opinion underscores the lack of compulsion. After conceding that Petitioner’s own experiences in Belarus did not rise to the level of persecution, the majority speculates that Petitioner “can establish a pattern or practice of persecution of groups of persons similarly situated and that she is a member of the group such that her fear of persecution upon return is reasonable.” Majority Opinion, p. 896 (quoting Kotasz v. INS, 31 F.3d 847 , 853 n. 8 (9th Cir. 1994)) (alterations and internal quotation marks omitted). Without citing to any evidence in the record, the majority muses that “[t]his similarly…

Natallia Rusak, a twenty-eight year old native and citizen of Belarus currently residing in California, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) determination that she is not entitled to asylum, withholding of removal, or relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252 (a). We review the BIA’s decision for substantial evidence and must affirm if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)).

Ms. Rusak has been deaf since infancy, a condition that she claims subjected her to persecution in Belarus due to widespread hostility to persons with disabilities. Ms. Rusak’s family also belongs to the Seventh Day Adventist Church, a religion disfavored in Belarus. According to the testimony of Ms. Rusak and her mother, Ms. Rusak’s mother was arrested, beaten, and raped by the police on account of her church membership. She also lost her job as a schoolteacher as a consequence of her religious…