Oboichuk v. Gonzales

188 F. App'x 578

Opinion

MEMORANDUM

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Leonid and Iryna Oboichuk, natives and citizens of Ukraine, petition for review from the Board of Immigration Appeals’ (“BIA”) summary affirmance without opinion of an immigration judge’s (“IJ”) denial of their petitions for asylum, withholding of removal, and protection under the Convention Against Torture. The facts and prior proceedings are repeated herein only as necessary.

The Oboichuks claim that the BIA applied an improper standard for determining whether the firm resettlement bar applied to them. See 8 C.F.R. § 208.15. In light of our disposition in Maharaj v. Gonzales, 450 F.3d 961 (9th Cir.2006) (en banc), we agree, and remand for reconsideration of the firm resettlement bar in light of that opinion. See id. at 973-74.

The government maintains that even if the firm resettlement bar does not apply, the denial of the petition was still proper because the Oboichuks do not fear future persecution. We disagree. Because the Oboichuks established past persecution, they are presumed to have a well-founded fear of future persecution. Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir.2004). We agree with the petitioners that the BIA failed to apply this presumption. We therefore remand for reconsideration of the Oboichuks’ petition under the proper standard. Lopez v. Ashcroft, 366 F.3d 799, 806 (9th Cir.2004).

PETITION FOR REVIEW GRANTED; REMANDED.

■pjjg disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.