Ashot Mayilyan, a.k.a. Igor Georgiyevich v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHOT MAYILYAN, a.k.a. Igor
Georgiyevich; SATIK ALIKHANYAN;
TATEVIK MAYILYAN; ASTIGHIK
MAYILYAN,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70416
Agency Nos. A095-687-498
A096-342-849
A096-342-850
A096-342-851
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Ashot Mayilyan, Satik Alikhanyan, Tatevik Mayilyan, and Astighik
Mayilyan, natives and citizens of Armenia, petition for review of the Board of
FILED
MAR 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration
judge’s decision denying their applications for asylum and withholding of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006). We dismiss in part and grant in part the petition for
review, and we remand.
With respect to Tatevik (A096-342-850), the BIA reopened and terminated
removal proceedings for consideration of her application for adjustment of status.
Consequently, there is no final order of removal in effect for Tatevik and the court
lacks jurisdiction over the petition for review as to her. See 8 U.S.C. § 1252(a)(1);
Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (order) (dismissing,
without prejudice, for lack of jurisdiction). Accordingly, we dismiss the petition as
to Tatevik.
With respect to Astighik, in finding her asylum application was untimely-
filed, the agency failed to consider whether her inclusion as a derivative applicant
on her mother’s timely-filed application constituted an extraordinary circumstance.
See 8 C.F.R. § 1208.4(a)(5). Accordingly, we remand for the agency to consider
this in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per
curiam).

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Where, as here, the agency did not make an adverse credibility finding, the
court treats the petitioners’ factual contentions as true. See Navas v. INS, 217 F.3d
646, 652 n.3 (9th Cir. 2000). Ashot and Satik testified they were politically active
in the People’s Party of Armenia and were whistleblowers. They further testified
that their car was bombed; they were detained, harassed and beaten; Satik was fired
from her position as an inspector in the department of education; their house was
searched; and later their house was set on fire, largely destroying it and causing
Ashot to be hospitalized for 10 days. We conclude petitioners’ activities, the
timing of the harms they suffered, and the statements made to them compel the
conclusion petitioners suffered these harms, at least in part, on account of their
political opinion. See Deloso v. Ashcroft, 393 F.3d 858, 865-66 (9th Cir. 2005)
(timing of attacks indicated they occurred on account of a protected ground);
Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir. 2000) (statements made to
petitioners were circumstantial evidence that persecutors were motivated by race
and political opinion); Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (“When
the alleged corruption is inextricably intertwined with governmental operation, the
exposure and prosecution of such an abuse of public trust is necessarily political.”).
Further, the record compels the conclusion that the harms petitioners suffered,
considered cumulatively, rose to the level of persecution. See Gui v. INS, 280 F.3d

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1217, 1229 (9th Cir. 2002) (harassment, wiretapping, staged car crashes, detention,
and interrogation constituted persecution). Because petitioners established past
persecution, we remand their asylum and withholding of removal claims to the
BIA to apply the presumption of future fear in its analysis of their claims. See
8 C.F.R. §§ 1208.13(b)(2), 1208.16(b)(1); Ventura, 537 U.S. at 16-18.
In summary, we dismiss the petition as to Tatevik, and grant the petition as
to Ashot, Satik, and Astighik, and we remand their asylum and withholding of
removal claims for further proceedings consistent with this disposition. See id.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.

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