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NOT FOR PUBLICATION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.
5