                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 18 2010

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




                            FOR THE NINTH CIRCUIT



ANNA AVANESOVA,                                  No. 06-70711

              Petitioner,                        Agency No. A097-119-658

  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, Senior District
Judge.**

       Anna Avanesova, a native and citizen of Georgia, seeks review of a decision

of the Board of Immigration Appeals (BIA) that affirmed an Immigration Judge’s




        *
             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 Western Louisiana, sitting by designation.
(IJ’s) denial of asylum. Having jurisdiction under 8 U.S.C. § 1252(a), we grant the

petition and remand for further proceedings.

      Because the BIA’s decision adopted and affirmed the IJ’s decision while

adding its own analysis, we review both decisions. Mousa v. Mukasey, 530 F.3d

1025, 1027 (9th Cir. 2008). But where, as here, “the BIA’s decision is silent on the

issue of credibility, despite an IJ’s explicit adverse credibility finding, we may

presume that the BIA found the petitioner to be credible . . . .” Krotova v.

Gonzales, 416 F.3d 1080, 1084 (9th Cir. 2005). We therefore assume petitioner’s

testimony and application to be truthful and review for substantial evidence the

determination that Avanesova had demonstrated neither past persecution nor an

independently well-founded fear of future persecution. Lolong v. Gonzales, 484

F.3d 1173, 1178 (9th Cir. 2007) (en banc).

I.    Past Persecution

      As the BIA recognized, the kidnaping and gang rape Avanesova suffered

rise to the level of persecution. See, e.g., Shaofera v. INS, 228 F.3d 1070, 1074

(9th Cir. 2000). Private persons committed this crime, and according to the BIA

and IJ, Avanesova did not demonstrate that the Georgian government was

unwilling or unable to control them.




                                           2
      Avanesova failed to report the crime successfully, despite her efforts. That

failure, however, is not the end of the inquiry if she “can convincingly establish

that doing so would have been futile or have subjected [her] to further abuse.”

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006).

      Here, every contact that Avanesova and her mother, Isolda, had with the

Georgian government demonstrated its active hostility or passive unwillingness to

help. Rather than punishing the boys who had been yelling ethnic slurs and

throwing rocks into Avanesova’s apartment, the police responded by invading and

trashing the apartment while kicking Avanesova and her mother and calling them

“[d]irty Abkhazians, dirty Armenians,” and saying that “mixtures ha[d] no right to

live [in] Georgia.” The threats and attacks that Avanesova and Isolda received

after Isolda reported corruption in the government (a beating, menacing phone

calls, and an interrogation in a college dean’s office) could only have come from

within the government, and were explicitly motivated by ethnicity. Rather than

demonstrating the Georgian government’s willingness to punish ethnically

motivated crime, the corruption prosecution demonstrates the opposite. The

defense attorney accused Isolda of espionage on behalf of Abkhazia, of

undermining the Georgian government, and of hiding her ethnic origin. Neither




                                          3
the prosecutor nor the presiding judge was willing to stop this harassment. The

prosecution was then dismissed for “lack of sufficient evidence.”

      Thus, there is no record evidence that the Georgian government effectually

responded to any legal complaint that Avanesova and her mother brought to its

attention. Rather, on every occasion it either actively thwarted their legal remedies

on account of their ethnicity or consciously refused to stop private persons who

discriminated against them. Only conjecture and speculation can support a finding

that the government would have effectually responded had Avanesova reported her

kidnaping and rape, and “conjecture and speculation can never replace substantial

evidence.” Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000). We therefore grant

Avanesova’s petition on the issue of past persecution and remand to the agency for

further proceedings under a shifted burden of proof. 8 C.F.R. § 208.13(b)(1).

II.   Well-Founded Fear of Future Persecution

      Avanesova contends that there is a pattern or practice of persecution against

Armenians in Georgia, but substantial evidence supports the agency’s contrary

finding. At most the record shows the prevalence of certain kinds of

discrimination or disfavor rather than a pattern or practice of persecution. See

Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).




                                          4
      Nevertheless, neither the BIA nor the IJ engaged in “what has come to be

called . . . ‘disfavored group’ analysis.”1 Id. at 1062. On remand, the agency

should consider in the first instance whether Avanesova is eligible for asylum

under the theory that ethnic Armenians are a disfavored group in Georgia. See

id. at 1067 (explaining the proper mode of disfavored-group analysis). We note

that the record also contains support for the proposition that Abkhazians and

persons who like Avanesova are of mixed ethnicity are disfavored groups.

      PETITION GRANTED; REMANDED.




      1
        We have jurisdiction over Avanesova’s disfavored-group argument
because her pattern-or-practice claim subsumes it. See Wakkary, 558 F.3d at 1064
(explaining that the two theories are different in degree, not in kind); see also
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (the exhaustion
requirement applies to claims rather than arguments).

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