Kravchuk

dissenting.

I respectfully dissent.

Here, the IJ found Kravchuk credible. As the majority notes, the IJ committed legal error by then conflating the question whether Kravchuk suffered past persecution with whether evidence of changed country conditions rebutted the presumption that necessarily flows from a finding of past persecution. Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir.2007). The majority’s attempt to rescue the IJ from her erroneous view of the law by employing harmless error analysis finds no support in our jurisprudence. “Harmless error” is not the standard by which we review the IJ’s decision. Rather we must ask whether the decision is supported by substantial evidence. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992).

Substantial evidence does not support the IJ’s conclusion. The 1978, 1986 and 2000 incidents amount to past persecution under our precedents. The 2000 event alone, where members of the Security Service of Ukraine knocked Kravchuk unconscious for his failure to cooperate with the government in hunting down members of his unregistered Baptist church, establishes past persecution. See Chand v. I.N.S., 222 F.3d…

MEMORANDUM *

Oleksandr Kravchuk, a native and citizen of Ukraine, petitions for review of the Board of Immigration Appeals’ affirmance, without opinion, of the Immigration Judge’s denial of asylum, withholding of removal, and relief under the Convention Against Torture. He alleges that he was persecuted on account of his religion. We have jurisdiction pursuant to 8 U.S.C. § 1252 (b). We review the IJ’s decision as the final agency determination. 8 C.F.R. § 1003 . l(e)(4)(ii). We review the IJ’s decisions for substantial evidence. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992); Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.2007). The IJ found Kravchuk to be credible, so we accept his testimony as true.

Kravchuk presented several incidents of mistreatment in support of his asylum claim. In 1978 and again in 1986, Kravchuk was summoned by the KGB (also referred to as the Security Service of Ukraine) and asked to disclose to them information about his unregistered church, the Evangelical Baptist Church, and its members. Also in 1986, he was fined and eventually jailed for holding illegal gatherings for the church. Believing that the fall of the…