                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 29 2010

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




                            FOR THE NINTH CIRCUIT



KNARIK BAGRATOVNA                                No. 06-70718
CHALABYAN,
                                                 Agency No. A097-478-965
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

              Respondent.



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

                        Argued and Submitted May 3, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, District Judge.**


       Petitioner, Knarik Bagratovna Chalabyan, a native of the former Soviet

Union and a citizen of Armenia, filed a petition for asylum alleging that she

suffered past persecution and fears future persecution because of her Azeri

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
ethnicity and political activism. Chalabyan also filed claims for withholding of

removal and protection under the Convention Against Torture (“CAT”). See 8

U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16, 1208.18. After a hearing on the merits,

the Immigration Judge (“IJ”) found Chalabyan to be statutorily ineligible for

asylum because she failed to carry her burden of proof in demonstrating that her

application was timely filed. The IJ also found that Chalabyan was not a credible

witness. Relying on his adverse credibility finding, the IJ determined that

Chalabyan failed to carry her burden of proof in demonstrating her eligibility for

withholding of removal and protection under CAT.

      First, Chalabyan filed a timely appeal and the Board of Immigration Appeals

(“BIA”) analyzed the merits of Chalabyan’s asylum claim without addressing the

IJ’s determination that her application was untimely. The Government conceded in

its brief that timeliness is no longer an issue because the BIA addressed the merits

of Chalabyan’s asylum claim. Therefore, we hold that the BIA implicitly rejected

the IJ’s finding of untimeliness.

      Second, although the BIA reversed the IJ’s adverse credibility finding as

inadequate, it failed to analyze the merits of Chalabyan’s claims after crediting her

testimony about her experiences. The Government failed to address the adverse

credibility reversal in its responsive brief. As we have no basis to consider


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Chalabyan’s testimony as anything less than credible, Lopez-Alvarado v. Ashcroft,

381 F.3d 847, 851 (9th Cir. 2004), we analyze the merits of her asylum application

and grant Chalabyan’s petition.

      To qualify for asylum, Chalabyan must establish that she is unwilling to

return to Armenia “because of persecution or a well-founded fear of persecution on

account of her race, religion, nationality, membership in a particular social group,

or political opinion.” Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004).

Whether an alien has demonstrated past persecution or a well-founded fear of

future persecution are questions reviewed for substantial evidence. Lolong v.

Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). Under this standard, the

agency’s determination must be upheld “unless the evidence not only supports, but

compels the conclusion that the asylum decision was incorrect.” Id. (citation and

quotation marks omitted).

      The record in this case compels the conclusion that Chalabyan suffered past

persecution on account of her ethnicity. Chalabyan narrowly escaped a house fire

the same month that she received an anonymous letter threatening her that if she

did not leave, she would be burned to death “along with [her] house” because she

was Azeri. Chalabyan had brought the death threat to the police’s attention.

Despite the temporal connection between the death threat and the fire, the police


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were unwilling to investigate the matter. No reasonable factfinder could conclude

that the fire was coincidental. Chalabyan was therefore the victim of past

persecution on account of her Azeri ethnicity. See Andriasian v. INS, 180 F.3d

1033, 1042-43 (9th Cir. 1999).

      The record also compels the conclusion that Chalabyan suffered past

persecution on account of her political opinion. Chalabyan became a member of

the People’s Party in 1998, and became an active participant in the political process

in 2002. She had several assignments with the party including (1) collecting

signatures to ensure that the opposition candidate, Stephan Demirchian, would

appear on the ballot for the March 2003 presidential election, (2) overseeing the

electoral committee in her neighborhood, and (3) monitoring the election at a local

polling station.

      Chalabyan describes several incidents surrounding her assistance with the

March 2003 election. She claims that she was intimidated, pushed, and hit in the

ear by two men (alleged to be cronies of the established party) when she called

attention to an incident of ballot box stuffing. She asserts that the men told her

“you won’t get home” if she continued to call attention to the voting discrepancies,

but she refused to back down. Finally, the men approached her again outside the




                                           4
presence of international observers and asked her why she was not taking their

threats seriously.

      The day after the election, Chalabyan claims that she was attacked on the

street by an unknown assailant who pushed her to the ground and hit her while

chastising her for supporting Stephan Demirchian. As a result of this assault,

Chalabyan sought treatment at the local hospital. She states in her application that

police officers came to the hospital, questioned her, and informed her that she

would be arrested. According to Chalabyan, the police left an arrest order with the

hospital staff, and instructed the doctors to prepare her so that she could be

checked out the following day to report to the police station. Chalabyan claims

that a nurse helped her flee the hospital without detection. Chalabyan claims that

when she arrived home she received a phone call from her sister-in-law who

informed her that the police were looking for her. Chalabyan left Armenia two

days later and never returned. Chalabyan also presented documentation of the

wide-spread detention of political opposition activists shortly after the election.

      Chalabyan alleges that she suffered a physical attack coupled with threats,

which is consistent with persecution. Mamouzian v. Ashcroft, 390 F.3d 1129, 1134

(9th Cir. 2004) (holding that when physical abuse is combined with other

incidents, such as threats, “the harm is severe enough that no reasonable fact-finder


                                           5
could conclude that it did not rise to the level of persecution” (internal quotations

omitted)). Further, the evidence compels the conclusion that government officials

were involved in the threats and violence, and that the persecution was committed

because of her political opinion and affiliation with the opposition presidential

candidate. Accordingly, this Court concludes that substantial evidence does not

support the finding that Chalabyan did not experience past persecution.

      Because Chalabyan has established that she suffered past persecution

because of her political opinion, on remand she will be entitled to a presumption of

future persecution. 8 C.F.R. § 1208.13(b)(1). We remand this case to allow the

BIA the initial opportunity to determine whether the Government has successfully

rebutted the presumption of future persecution, which would otherwise entitle her

to asylum.

      Finally, Petitioner also filed a claim for withholding of removal and relief

under CAT. As discussed supra, the IJ relied on his adverse credibility finding to

deny these claims. Although the BIA reversed the IJ’s adverse credibility finding,

it summarily affirmed his ruling on withholding of removal and relief under CAT,

citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Hence, the agency has

not engaged in an analysis of either issue taking Chalabyan’s testimony as credible.




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Therefore, Chalabyan’s claims for withholding of removal and relief under CAT

are remanded for the agency to address.

      PETITION GRANTED; REMANDED.




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