                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 26 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


PETER KANIN, AKA Peter A. Kanin,                  No. 14-70762
AKA Petr Kanin, AKA Petr Aleks Kanin,
                                                  Agency No. A205-720-624
               Petitioner,

  v.                                              MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Peter Kanin, a native and citizen of Russia, petitions pro se for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

          *
             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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, and de novo questions of law. Doe v. Holder, 736 F.3d 871, 877 (9th Cir.

2013). We deny in part and grant in part the petition for review, and we remand.

      Kanin does not challenge the agency’s denial of his CAT claim. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues not

specifically raised and argued in a party’s opening brief are waived). Thus, we

deny the petition for review as to his CAT claim.

      Substantial evidence does not support the agency’s determination that Kanin

failed to establish that the harm he suffered in Russia as a result of his sexual

orientation rose to the level of persecution. See Ahmed v. Keisler, 504 F.3d 1183,

1194 (9th Cir. 2007) (physical harm has consistently been treated as persecution,

and when an applicant is “victimized at different times over a period of years, the

cumulative effect of the harms is severe enough” to compel a finding that the harm

rose to the level of persecution). Accordingly, we grant the petition and remand

Kanin’s asylum and withholding of removal claims to allow the BIA to determine

whether he is entitled to a presumption of future fear in the first instance. See INS

v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of this disposition, we

need not reach the issue of whether Kanin had an objectively reasonable fear of

future persecution.


                                           2                                        14-70762
   Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




                                       3                               14-70762
