                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            DEC 05 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


IACOB BOTH; et al.,                              No.   09-72024

              Petitioners,                       Agency Nos.         A099-340-361
                                                                     A099-340-418
 v.                                                                  A099-340-362
                                                                     A099-340-363
JEFFERSON B. SESSIONS III, Attorney                                  A099-340-364
General,                                                             A099-340-365
                                                                     A099-340-366
              Respondent.                                            A099-340-367
                                                                     A099-340-368
                                                                     A099-340-369


                                                 MEMORANDUM*


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

                     Argued and Submitted November 16, 2017
                             San Francisco, California

Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN,** District
Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
      Petitioners Iacob Both, Elisabeta Both, and their eight children (collectively,

“the Boths”) petition for review of the Board of Immigration Appeals’ (“BIA”)

decision denying their claims for asylum and withholding of removal.1 We have

jurisdiction under 8 U.S.C. § 1252. We review “the [BIA]’s legal conclusions de

novo and its factual findings for substantial evidence.” Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (internal citations

omitted). We grant the petition and remand for further proceedings.

      The record compels the conclusion that the Boths suffered past persecution

on account of their Romanian background.2 The BIA’s determination that the

Boths had failed to establish that the Austrian government was unable or unwilling

to control the family’s assailants is not supported by substantial evidence.

      When an asylum seeker has reported past persecution to the authorities, we

“look[] to evidence of how the police responded to the petitioner’s requests for

protection.” Bringas-Rodriguez, 850 F.3d at 1063. The Boths requested assistance

      1
        On appeal, the Boths do not challenge the BIA’s denial of their
Convention Against Torture (“CAT”) claim. Accordingly, the Boths have “waived
review of their CAT claim.” Tampubolon v. Holder, 610 F.3d 1056, 1058 n.3 (9th
Cir. 2010).
      2
          We assume, without deciding, that Mr. Krammer was not a government
official. We note, however, that if the persecutor in question is a government
official, the “third prong of our asylum inquiry is satisfied without further analysis
[and] no inquiry into whether a petitioner reported the persecution to police is
necessary.” Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004).
                                           2
from the police and other governmental authorities on three separate occasions.

On the first of these occasions, the mayor of their town not only refused to offer

any assistance to the family but actively disparaged them, remarking that the Boths

were Austrian citizens “on paper only and nothing more.”

      When D.B., the Boths’ twelve-year-old son, was brutally beaten in 2002 by

Mr. Krammer, the chief of Burgau’s fire department, and rendered permanently

deaf in one ear, the police declined to arrest Mr. Krammer or bring criminal

charges. Local prosecutors instead pursued an out-of-court settlement that required

Mr. Krammer to pay restitution to the Boths. Mr. Krammer ultimately refused to

pay the restitution amount—a decision that prosecutors did not challenge for three

years. It was not until 2005 that prosecutors finally sought and procured a higher

restitution amount in court. This, too, proved inconsequential. Mr. Krammer, who

was evidently undeterred by the prospect of an unenforced fine and continued to

threaten D.B. and the Both family following the attack, informed the Boths’

attorney that he would “rather kill [D.B.] than pay him any money.”

      We have repeatedly cautioned that the mere appearance of punishment “may

not be sufficient to rebut claims that the government is unable or unwilling to stop

persecutors, especially where the punishment may amount to no more than a ‘slap

on the wrist.’” Navas v. INS, 217 F.3d 646, 656 n.10 (9th Cir. 2000) (internal


                                          3
citation omitted). Mr. Krammer’s ethnically motivated attack left D.B., a child,

with damaged adaptability and long term depressive symptoms. Moreover, D.B.

continues to suffer from medical complications stemming from the assault. Given

the gravity of the offense, the prosecutors’ pursuit of a monetary fine was not

punishment “commensurate with [Mr. Krammer’s] crimes.” Singh v. INS, 94 F.3d

1353, 1357 (9th Cir. 1996). This is particularly true because Mr. Krammer’s

unceasing threats eventually forced the Boths to relocate to the United States. As a

result, Mr. Krammer never paid restitution and suffered no consequences for his

assault. Such a superficial “punishment” or “slap on the wrist” compels the

conclusion that the Austrian authorities were unwilling or unable to control him.

      Lastly, we note that although the police dispatched an officer to assist the

Boths in the aftermath of a car accident on one occasion, the record shows that the

officer’s attitude towards the Boths changed after he realized they were Romanian.

The officer refused to locate the driver who pushed the Boths off the road and said

he would do nothing unless the Boths told him the identity of the

driver—information the Boths could not possibly produce. The Boths ultimately

received no assistance following the accident.

      The record contains additional evidence that the Austrian government was

unwilling or unable to control the Boths’ persecutors. The 2006 country report for


                                          4
Austria clearly states that “persons from diverse ethnic and racial backgrounds

face[] increasing discrimination from government officials, particularly the police.”

      We therefore conclude that the BIA’s decision was unsupported by

substantial evidence. Because the Boths have successfully shown past persecution

on their asylum and withholding claims, they are entitled to a presumption that

they have a well-founded fear of future persecution. See Baballah, 367 F.3d at

1078. We remand for the agency to determine whether the government has

rebutted this presumption. See INS v. Ventura, 537 U.S. 12, 16–18 (2002).

PETITION FOR REVIEW GRANTED; REMANDED.




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