Antoshchenko

MEMORANDUM **

Tetyana Antoshchenko, a Ukrainian national, petitions for review of a Board of Immigration (BIA) decision that denied asylum, withholding of removal and relief under the United Nations Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 (b) and review the BIA’s denial for substantial evidence. Where, as here, the BIA affirms without opinion, we directly review the Immigration Judge’s (IJ) decision. See Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). We hold that the IJ’s decision that Antoshchenko failed to establish past persecution is unsupported by substantial evidence. Accordingly we grant Antoshchenko’s petition in part and remand for further proceedings. Because the parties are familiar *580 with the facts we do not recite them in detail.

I. Waiver

The government argues that Antoshchenko waived all her claims by not raising them specifically and distinctly in her brief to this court. See Greenwood v. F.A.A, 28 F.3d 971, 977 (9th Cir.1994). The government is correct that Antoshchenko does not argue that she has a well-founded fear of future persecution (other than on the basis of the statutory presumption, see 8 C.F.R. § 208.13…

dissenting.

Although I appreciate the hardship Tetyana Antoshehenko has suffered, we must deny the petition for review of a denial of asylum unless the record compels a result contrary to that reached by the Immigration Judge (“IJ”). Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.2005). Antoshchenko herself provided the evidence supporting the IJ’s determination that Antoshchenko has not demonstrated past per *583 secution based on her religion. Because the evidence does not compel a conclusion that the IJ was wrong, I respectfully dissent.

Antoshchenko may well have experienced discrimination in her life, something I do not condone, but discrimination alone does not normally rise to the level of persecution. See Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (explaining that “[d]iscrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’ within the meaning of the Act”).

The primary basis for the majority’s conclusion that Antoshchenko was persecuted is four incidents, consisting of two arrests, a robbery and a fire at her apartment. The two arrests are the most serious allegations, but based on…