Gaysinskiy v. Mukasey

305 F. App'x 397

Opinion

MEMORANDUM

Footnotes

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Sergey Leonidovich Gaysinskiy, a native and citizen of Ukraine, seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir.1998), and we deny in part and grant in part the petition for review and we remand.

Substantial evidence supports the agency’s conclusion that country conditions had changed sufficiently to rebut any presumption of a well-founded fear of future persecution that Gaysinskiy had as a Jew in Ukraine. See id.

As Gaysinskiy failed meet his burden to demonstrate eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.2004).

Because both the IJ and BIA failed to consider Gaysinskiy’s CAT claim, we re mand for the agency to determine it in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.