                                                                            FILED
                             NOT FOR PUBLICATION                             APR 19 2010

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




                             FOR THE NINTH CIRCUIT



BORISLAV IVANOV,                                  No. 07-73566

               Petitioner,                        Agency No. A097-586-656

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

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Borislav Ivanov, a native and citizen of Bulgaria, petitions for review of the

Board of Immigration Appeals’ order summarily affirming an immigration judge’s

(“IJ”) decision denying his application for asylum and withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence


          *
             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).
findings of fact, and we review de novo legal determinations. Wakkary v. Holder,

558 F.3d 1049, 1056 (9th Cir. 2009). We grant the petition for review and remand.

      When determining that Ivanov had not established eligibility for asylum and

withholding of removal, the IJ did not consider several incidents of harm suffered

by Ivanov because the IJ found there was insufficient evidence of government

involvement. The IJ erred because affirmative state action is not necessary to

establish eligibility for relief if the government is unable or unwilling to control the

agents of persecution. See Siong v. INS, 376 F.3d 1030, 1039 (9thCir. 2004).

Accordingly, because the IJ used an incorrect legal standard, we grant the petition

for review and remand Ivanov’s asylum and withholding of removal claims for

further consideration. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir.

2004) (“[W]e must grant a petition for review and, in an appropriate case, remand a

case for further consideration when the denial of asylum was based on an error of

law.”); see also INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                           2                                     07-73566
                                                     FILED
                                                      APR 19 2010

                                                  MOLLY C. DWYER, CLERK
                                                   U .S. C O U R T OF APPE ALS




Dissent:
Judge Rymer would deny the petition for review.
