Dinko Ivanov Mihalev v. John Ashcroft, Attorney General

Petitioner Dinko Ivanov Mihalev petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming without opinion the decision of an immigration judge (“IJ”). The IJ rejected Petitioner’s claims for asylum, withholding of deportation, and relief under the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”) and ordered Petitioner removed. Petitioner argues that the IJ’s determination that he did not suffer past persecution is not supported by the record. 1 We agree, grant the petition in part, and remand the matter to the BIA.

JURISDICTION

Because Petitioner was placed in deportation proceedings after April 1, 1997, the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 govern this case. Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1208 (9th Cir.2004). Section 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252 (a)(1), gives us jurisdiction to consider the petition for review.

STANDARDS OF REVIEW

We review for substantial evidence the agency’s factual findings. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003). We…

dissenting:

Petitioner testified that he was arrested for hosting a party with his gypsy friends and that the police made disparaging remarks about gypsies when they arrested him. These facts support the majority’s conclusion that the arrest was on account of his gypsy ethnicity. But the beatings the majority believes amount to persecution happened after the arrest, and petitioner offered no evidence to connect that abuse to his ethnicity.

We have sometimes found derogatory comments sufficient to establish the motive for persecution, but only where they were made “[i]n the course of persecuting” the alien. Baballah v. Ashcroft, 367 F.3d 1067, 1077 (9th Cir.2004); see also, e.g., Maini v. INS, 212 F.3d 1167, 1176 (9th Cir.2000) (“[T]he ‘repeated beatings coupled with explicit expressions of [religious] hatred’ ... *732 compel a finding of persecution on account of religion.” (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999)) (omission and first alteration added)). When someone is called names while being beaten, it’s reasonable to associate the two. Here, petitioner was abused in custody— after the arrest and, for all we know, by different officers. Petitioner…

388 F.3d 722 Dinko Ivanov MIHALEV, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-73434. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 10, 2004. Filed November 9, 2004. COPYRIGHT MATERIAL OMITTED Nicolette Glazer, Law Offices of Larry R. Glazer, Century City, CA, for the petitioner. Jennifer A. Parker, U.S. Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS No. Abn-hqh-eer. Before: D.W. NELSON, KOZINSKI, and GRABER, Circuit Judges. GRABER, Circuit Judge. 1 Petitioner Dinko Ivanov Mihalev petitions for review of the Board of Immigration Appeals' ("BIA") order affirming without opinion the decision of an immigration judge ("IJ"). The IJ rejected Petitioner's claims for asylum, withholding of deportation, and relief under the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("the CAT") and ordered Petitioner removed. Petitioner argues that the IJ's determination that he did not suffer past persecution is not supported by the record. 1 We agree, grant the petition in part, and remand the matter to the BIA.…