Meged

concurring specially.

I concur specially because the decision reached by this court today follows circuit precedent in an opinion by the en banc court in Fisher v. INS, 79 F.3d 955 (9th Cir.1996). I believe the observations in Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir.1998), are particularly apt.

To me, the frequent use of the term “mere discrimination” is most troublesome. What is termed “mere discrimination” can portend much more. Such differentiation between discrimination and persecution fails to consider the events in the world commencing in the last third of the twentieth century when pervasive discrimination did indeed lead to persecution, and ultimately the Holocaust.

MEMORANDUM ***

Petitioners Oksana and Sergiy Meged, and their daughter, Yuliya Meged, all Ukranian nationals, conceded removability and sought asylum and withholding of removal, and alternatively requested voluntary departure. The immigration judge (“IJ”) denied relief and the Board of Immigration Appeals (“BIA”) summarily affirmed. On behalf of all three, Oksana petitioned for review, arguing that the IJ’s decision should be reversed because the IJ abused his discretion and because he failed to consider all the evidence in the record. She also argued that the BIA’s summary affirmance procedure violated petitioners’ due process rights. We deny the petition.

When the BIA does not perform an independent review of the IJ’s decision and instead defers to the IJ, the court of appeals reviews the IJ’s decision as the final agency action. San Pedro v. Ashcroft, 395 F.3d 1156, 1156 (9th Cir.2005). The BIA’s affirmance of the IJ’s decision that an alien has not established eligibility for asylum or withholding of removal is reviewed under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). The BIA’s determination must be upheld if “supported by…