United States 9th Circuit Court of Appeals Reports


SABLINA v. GONZALES, 05-71122 (9th Cir. 1-11-2007) RAISA
Attorney General, Respondent. No. 05-71122, Agency No.
A78-665-904. United States Court of Appeals, Ninth
Circuit. Submitted January 8, 2007[fn**]. January 11,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.][fn**] This panel unanimously finds this case
suitable for decision without oral argument. See
Fed.R.App.P. 34(a)(2).


[fn*] This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R.

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

Before: ALARC?“N, HALL, and PAEZ, Circuit Judges.

Raisa Andreevna Sablina, a native and citizen of Russia,
petitions for review of the Board of Immigration Appeals’
(“BIA”) decision that affirmed the Immigration Judge’s
(“IJ”) denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction pursuant to 8 U.S.C. §
1252. We review for substantial evidence, Ramos-Vasquez v.
INS, 57 F.3d 857, 861 (9th Cir. 1995), and we grant the
petition and remand.

Sablina testified that, on three separate occasions, she
suffered harm directly at the hands of government
officials. In addition, Sablina presented evidence that the
police were unwilling or unable to control Cossacks after
they beat her on one occasion, beat her pastor on another
occasion, and threatened her over the phone. Further, after
she filed a complaint about the Cossacks threats, the
police indicated that the Cossacks were active voluntary
assistants of law enforcement. Accordingly, the IJ’s
finding that Sablina failed to establish that the harm she
experienced was committed by the government or forces the
government is unable or unwilling to control is not
supported by substantial evidence. See Mashiri v. Gonzales,
383 F.3d 1112, 1121 (9th Cir. 2004) (petitioner provided
sufficient evidence to show that the government was unable
or unwilling to control her persecutors); Surita v. INS, 95
F.3d 814, 819-20 (9th Cir. 1996) (in cases of
nongovernmental persecution, this court considers whether
an applicant reported the incidents to police, because in
such cases a report of this nature may show governmental
inability or unwillingness to control the actors).

Because every incident complained of occurred on account of
Sablina’s Baptist faith substantial evidence does not
support the IJ’s nexus finding. See Gafoor v. INS, 231 F.3d
645, 650-51 (9th Cir. 2000).

Because the IJ did not fully consider whether Sablina
suffered past persecution, we grant the petition as to
Sablina’s asylum and withholding claims and remand to the
agency for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).

Sablina failed to exhaust her CAT claim before the BIA.
Thus, this court lacks jurisdiction to review it. See
Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987).