Ochir v. Mukasey

295 F. App'x 227

Opinion

MEMORANDUM

**

Bayasgalan Agvaan Ochir, his daughter, and his former wife, natives and citizens of Mongolia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Nahrvani v. Gonzales, 399 F.3d 1148, 1151 (9th Cir.2005), and we grant petition for review and remand.

Substantial evidence does not support the BIA’s determination that the Mongolian government is willing or able to protect Ochir from persecution because Ochir’s credible testimony and asylum application statement established that he was attacked in jail because of his political opinion and that the government ignored his reports of the attack. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004) (“Testimony must be accepted as true in the absence of an explicit adverse credibility finding.”).

Because this finding was the BIA’s basis for denying relief, we grant the petition for review and remand Ochir’s asylum, withholding of removal, and CAT claims to the BIA for further proceedings consistent with this decision. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

We deny Ochir’s request to hold proceedings in abeyance pending the adjudication of the 1-130 petition filed on his behalf.

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.