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Dashdavaa Javhlan and v. Eric H. Holder Jr

December 3, 2010

DASHDAVAA JAVHLAN AND LHAYAJAV TUMURBAATAR,
PETITIONERS,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,
RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 4, 2010-Pasadena, California

The opinion of the court was delivered by: Judge Pregerson;

Before: Harry Pregerson, Dorothy W. Nelson and

Sandra S. Ikuta, Circuit Judges.

Opinion by

Dissent by Judge Ikuta

19277 OPINION

COUNSEL

OPINION

PREGERSON, Circuit Judge:

Dashdavaa Javhlan*fn1 ("Javhlan "), a native and citizen of Mongolia, petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge ("IJ") denied Javhlan's applications for relief and the BIA affirmed without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Thus, we review the IJ's decision as the BIA's final determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand to the BIA for further proceedings.

We review a decision that an applicant has not established eligibility for asylum and withholding of removal under the substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). "[The BIA] can be reversed only if the evidence presented . . . was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Id.

Because the IJ did not make an adverse credibility determination, we take Javhlan's testimony as true. Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000). The following facts are thus drawn from Javhlan's testimony at her hearing before the IJ and from Javhlan's supporting documents.

Javhlan grew up hearing her grandparents talk about their fears of communist rule in Mongolia. She also heard the story of how her deceased paternal grandfather, a Buddhist Monk, was tortured and killed by agents of the communist government in 1937. As an adult, Javhlan refused to join the Communist Party. She also refused to serve as a spy for the communist Secret Police by acting as their "eyes and ears" at the Mongolian British and Indian embassies where the Mongolian Ministry of Foreign Affairs had placed her. At another time, Javhlan worked at the United Nations Development Programme (UNDP) in Mongolia where again she was pressured and refused to spy for the Secret Police.

Secret Police agents approached Javhlan frequently on her way to and from work and threatened her with assault, imprisonment, rape, and death because she refused to act as a spy for them. Secret Police agents told her, "[W]e have the power to arrest you and we will show you that there's not a life of prison. We can do anything. We can rape you. We will show you what misery is all about." In June 1995, a Secret Police Captain named Ganbold arrested Javhlan and took her to a prison, where she was interrogated for four to five hours. Captain Ganbold shouted at Javhlan that she was a traitor for not helping her country. Javhlan was terrified that she would not survive. Eventually, Javhlan was released from custody without any explanation. As Javhlan was leaving the prison, the agents warned her that she was fortunate this time, but that she would not come out alive next time. Javhlan continued to receive phone calls and in-person threats from Secret Police agents after this unexplained ...


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