                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 20 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



ASHOT MAYILYAN, a.k.a. Igor                      No. 10-70416
Georgiyevich; SATIK ALIKHANYAN;
TATEVIK MAYILYAN; ASTIGHIK                       Agency Nos. A095-687-498
MAYILYAN,                                                    A096-342-849
                                                             A096-342-850
               Petitioners,                                  A096-342-851

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                              Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Ashot Mayilyan, Satik Alikhanyan, Tatevik Mayilyan, and Astighik

Mayilyan, natives and citizens of Armenia, petition for review of the Board of




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration

judge’s decision denying their applications for asylum and withholding of removal.

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182,

1184-85 (9th Cir. 2006). We dismiss in part and grant in part the petition for

review, and we remand.

      With respect to Tatevik (A096-342-850), the BIA reopened and terminated

removal proceedings for consideration of her application for adjustment of status.

Consequently, there is no final order of removal in effect for Tatevik and the court

lacks jurisdiction over the petition for review as to her. See 8 U.S.C. § 1252(a)(1);

Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (order) (dismissing,

without prejudice, for lack of jurisdiction). Accordingly, we dismiss the petition as

to Tatevik.

      With respect to Astighik, in finding her asylum application was untimely-

filed, the agency failed to consider whether her inclusion as a derivative applicant

on her mother’s timely-filed application constituted an extraordinary circumstance.

See 8 C.F.R. § 1208.4(a)(5). Accordingly, we remand for the agency to consider

this in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam).


                                        2                                        10-70416
       Where, as here, the agency did not make an adverse credibility finding, the

court treats the petitioners’ factual contentions as true. See Navas v. INS, 217 F.3d

646, 652 n.3 (9th Cir. 2000). Ashot and Satik testified they were politically active

in the People’s Party of Armenia and were whistleblowers. They further testified

that their car was bombed; they were detained, harassed and beaten; Satik was fired

from her position as an inspector in the department of education; their house was

searched; and later their house was set on fire, largely destroying it and causing

Ashot to be hospitalized for 10 days. We conclude petitioners’ activities, the

timing of the harms they suffered, and the statements made to them compel the

conclusion petitioners suffered these harms, at least in part, on account of their

political opinion. See Deloso v. Ashcroft, 393 F.3d 858, 865-66 (9th Cir. 2005)

(timing of attacks indicated they occurred on account of a protected ground);

Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir. 2000) (statements made to

petitioners were circumstantial evidence that persecutors were motivated by race

and political opinion); Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (“When

the alleged corruption is inextricably intertwined with governmental operation, the

exposure and prosecution of such an abuse of public trust is necessarily political.”).

Further, the record compels the conclusion that the harms petitioners suffered,

considered cumulatively, rose to the level of persecution. See Gui v. INS, 280 F.3d


                                        3                                        10-70416
1217, 1229 (9th Cir. 2002) (harassment, wiretapping, staged car crashes, detention,

and interrogation constituted persecution). Because petitioners established past

persecution, we remand their asylum and withholding of removal claims to the

BIA to apply the presumption of future fear in its analysis of their claims. See

8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(1); Ventura, 537 U.S. at 16-18.

      In summary, we dismiss the petition as to Tatevik, and grant the petition as

to Ashot, Satik, and Astighik, and we remand their asylum and withholding of

removal claims for further proceedings consistent with this disposition. See id.

      The government shall bear the costs for this petition for review.

      PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.




                                       4                                       10-70416
