- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 11-27-2013
- Case #: 09-72161
- Judge(s)/Court Below: Circuit Judge Alarcón for the Court; Circuit Judges Fisher and Berzon
- Full Text Opinion
Doe, a Russian citizen, appealed the Board of Immigration Appeals’ ("BIA") denial of asylum, withholding of removal, and relief under Convention Against Torture after the BIA concluded that he “failed to demonstrate that the government was unable or unwilling to control the non-governmental actors” who persecuted him on because of his sexual orientation. On review, the Ninth Circuit held that Doe was not required to show that his sexual orientation was the reason the Russian government was unable or unwilling to control the non-governmental actors. The panel noted that the “only nexus required to establish a past-persecution asylum claim is that the applicant’s persecution be “on account of” one of the statutorily enumerated grounds. See 8 USC § 1101(a)(42(A). The panel concluded that Doe did in fact meet his burden of proof and that the BIA, based on evidence of past persecution on account of his homosexuality, should have presumed that Doe’s fear of persecution was well-founded. The panel remanded the case so the BIA could determine whether the government could overcome Doe’s well-founded fear of future persecution by either showing (1) that his fear was removed by “a fundamental change in circumstances” or (2) that Doe “could avoid future persecution by relocating to another part of [his] country.” 8 CFR § 208.13(b)(1). The panel further determined that BIA’s treatment of Doe’s ethnic discrimination as a separate ground for asylum was in error, concluding that the evidence lent support to Doe’s contention that relocation to another part of his country was unreasonable. REMANDED.