Rusak v. Holder, No. 08-70746 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Belarus, petitioned for review of an order of the BIA affirming an IJ's determination that she was not entitled to asylum, withholding of removal, or relief under the Convention Against Torture (CAT). Petitioner has been deaf since infancy and claimed that her condition subjected her to persecution in Belarus. Petitioner also claimed that she suffered persecution on account of her and her family's religion (Seventh Day Adventists). The court concluded that petitioner has made a showing of past persecution on the basis of religion and that the government failed to rebut this presumption. Accordingly, petitioner was eligible for asylum on this claim. The court granted the petition for review and remanded for further proceedings.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ decision denying asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Belarus because petitioner established past persecution based on the abuses her Seventh Day Adventist parents suffered while she was a child and the government failed to rebut the presumption of future persecution. The panel held that the Board erred by failing to take into account the harm petitioner’s family endured while she was a child in assessing past persecution. The panel concluded that petitioner was entitled to asylum because the government failed to rebut the presumption of future persecution. The panel remanded for further consideration of petitioner’s claims for withholding of removal and CAT protection. Dissenting, Judge Rawlinson wrote that the record does not compel the conclusion that the harm petitioner’s family suffered was closely tied to herself, and that the majority ignored substantial evidence in the record that Seventh Day Adventists are not currently persecuted in Belarus.
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