Ivanov v. Holder

376 F. App'x 733

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2010
• Docket: 07-73566
• Status: Unpublished

Opinions

MEMORANDUM

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Borislav Ivanov, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, and we review de novo legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We grant the petition for review and remand.

When determining that Ivanov had not established eligibility for asylum and withholding of removal, the IJ did not consider several incidents of harm suffered by Iva-nov because the IJ found there was insufficient evidence of government involvement. The IJ erred because affirmative state action is not necessary to establish eligibility for relief if the government is unable or unwilling to control the agents of persecution. See Siong v. INS, 376 F.3d 1030, 1039 (9th Cir.2004). Accordingly, because the IJ used an incorrect legal standard, we grant the petition for review and remand Ivanov’s asylum and withholding of removal claims for further consideration. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir.2004) (“[W]e must grant a petition for review and, in an appropriate case, remand a case for further consideration when the denial of asylum was based on an error of law.”); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

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