Gor Kharatyan v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 15-70629
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 13 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GOR KHARATYAN, No. 15-70629

Petitioner, Agency No. A095-179-809

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted April 11, 2018** Pasadena, California

Before: ROGERS,*** BYBEE, and WATFORD, Circuit Judges.

1. The Board of Immigration Appeals (BIA) did not abuse its discretion by

denying Gor Kharatyan’s asylum claim, either as a derivative or principal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John M. Rogers, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Page 2 of 3 applicant. See 8 U.S.C. § 1252(b)(4)(D). The immigration judge properly

considered the totality of the circumstances and weighed Kharatyan’s positive and

negative factors. See Kazlauskas v. I.N.S., 46 F.3d 902, 907 (9th Cir. 1995). In

particular, the immigration judge reasonably gave significant weight to

Kharatyan’s criminal history, which included at least eleven convictions after

removal proceedings had been initiated.

2. Substantial evidence supports the BIA’s determination that Kharatyan is

ineligible for withholding of removal and for relief under the Convention Against

Torture. See Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir. 2010).

Notwithstanding Kharatyan’s arguments to the contrary, because he applied for

these forms of relief in 2009, his application is governed by the REAL ID Act. See

id. at 1039–40. Substantial evidence supports the immigration judge’s adverse

credibility determination, which the BIA affirmed. See id. at 1044–45. In

particular, the immigration judge and the BIA properly took into account the fact

that Kharatyan’s testimony about his brother was inconsistent with the testimony

of his father and sister-in-law. The remaining record evidence, which the

immigration judge and BIA properly considered, does not on its own compel

reversal. See 8 U.S.C. §§ 1229a(c)(4)(B), 1231(b)(3)(C); Kamalthas v. I.N.S., 251

F.3d 1279, 1283–84 (9th Cir. 2001). Page 3 of 3 3. The BIA properly affirmed the immigration judge’s evidentiary rulings

and decision to grant a continuance. “The decision to grant or deny a continuance

is in the sound discretion of the judge and will not be overturned except on a

showing of clear abuse.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th

Cir. 2008) (per curiam) (internal quotation marks omitted). The immigration judge

did not abuse his discretion in granting a continuance here. As to the evidentiary

rulings, the admitted evidence was probative and its admission was fundamentally

fair. See Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995). That evidence also

was not dispositive in the immigration judge’s decision. Finally, Kharatyan fails to

establish that he was prejudiced by the exclusion of evidence. See Ladha v. I.N.S.,

215 F.3d 889, 904 (9th Cir. 2000), overruled on other grounds by Abebe v.

Mukasey, 554 F.3d 1203 (9th Cir. 2009).

PETITION FOR REVIEW DENIED.