Turina
Turina v. Immigration & Naturalization Service
Opinion
Dissenting Opinion
Rawlinson, J.
dissenting.
Judge Rawlinson dissents for the reasons stated in the now-withdrawn memorandum filed on October 12,2001.
Lead Opinion
MEMORANDUM *
Tatyana Leonidovna Gartsman, a.k.a. Tatyana Turina, 1 a citizen of the Ukraine, petitions for review of the order of the Board of Immigration Appeals (“BIA”) upholding an Immigration Judge’s denial of her request for asylum and for withholding of deportation. 2 We reverse and remand.
An alien can qualify for asylum as a refugee if she is unwilling or unable to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1101 (a)(42)(A). If a petitioner establishes that she has experienced past persecution, there is a rebuttable presumption that the petitioner has a well-founded fear of future persecution. 8 C.F.R. § 208.13 (b)(1)(i). The INS may rebut the presumption of future persecution by showing by a preponderance of the evidence that the country conditions have changed to such a degree that she longer has a well-founded fear of being persecuted if she were to return. See id.
*129 In this case, in order for the INS to have rebutted the statutory presumption, the BIA would first have had to apply it. Turina presented…