Kerob Kocharyan v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2021
• Docket: 19-73117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEROB KOCHARYAN, No. 19-73117

Petitioner, Agency No. A215 680 316

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 3, 2021** Pasadena, California

Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge.

Petitioner Kerob Kocharyan, a native and citizen of Armenia, seeks review of

a decision from the Board of Immigration Appeals (BIA) affirming the denial of his

* 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 Michael Howard Simon, United States District Judge for the District of Oregon, sitting by designation. requests for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the

petition for review.

We review agency denials of asylum, withholding of removal, and relief under

CAT for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

2017). Under this standard, we must uphold the agency’s determination unless any

reasonable trier of fact “would be compelled” to conclude to the contrary based on

the evidence in the record. Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir.

2018) (citation omitted). Here, we conclude substantial evidence supports the BIA’s

decision and deny Kocharyan’s petition.

In removal proceedings before the Immigration Judge (IJ), Kocharyan

testified that he fears he will be persecuted and/or tortured if removed to Armenia—

where he is a citizen—because his wife was raped by an Armenian oligarch when

she was 16 years old and the man who committed the crime remains a powerful

political figure in Armenia. Additionally, Kocharyan testified that two of his

brothers were killed in Armenia during clashes between Armenians and

Azerbaijanis, and that a few times he himself was the victim of “fights and beatings”

because of his “Turk origins.”

Kocharyan testified he also fears he will be persecuted and/or tortured if

removed to Russia—where he lived from 2000 until he arrived in the United States

2 in 2018—because of his Armenian nationality and/or political opinions concerning

the Putin administration.

1. Asylum from Armenia. The agency determined Kocharyan was not eligible

for asylum from Armenia because he was “firmly resettled” in Russia before arriving

in the United States. See 8 U.S.C. § 1158(b)(2)(A)(vi). Kocharyan has waived

review of this determination by failing to raise it “specifically and distinctly” in his

opening brief before this Court. See Diego v. Sessions, 857 F.3d 1005, 1015 n.4 (9th

Cir. 2017) (citation omitted). Accordingly, we deny Kocharyan’s petition to the

extent it seeks review of his denial of asylum from Armenia.

2. Withholding of removal as applied to Armenia. We also deny Kocharyan’s

petition to the extent it seeks review of his denial of withholding of removal from

Armenia. Because Kocharyan was able to travel to Armenia safely—almost

annually between 2000 and 2018, and sometimes with his wife and children, to visit

his parents who continue to reside there—substantial evidence supports the BIA’s

determination that Kocharyan failed to establish it is “more likely than not” that he

will face future persecution there. Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001)

(“An applicant’s claim of persecution upon return is weakened, even undercut, when

similarly-situated family members continue to live in the country without incident,

or when the applicant has returned to the country without incident.” (internal

3 citations omitted)), superseded by statute on other grounds as stated in Ramadan v.

Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).

3. Asylum from Russia. Substantial evidence also supports the agency’s

denial of Kocharyan’s petition for asylum as applied to Russia.

4. As to persecution because of Kocharyan’s nationality, substantial evidence

supports the agency’s determination that Kocharyan failed to meet his burden of

establishing that the Russian government is “unable or unwilling” to protect him.

Castro-Perez v. Gonzales, 409 F.3d 1069, 1071 (9th Cir. 2005). During a 2005

assault in which Kocharyan was a victim, the police detained Kocharyan’s

assailants. And during a 2013 assault against Kocharyan, the police “calmed the

situation down.” Although Kocharyan testified the police “smirk[ed]” while he was

being attacked, delayed in rendering him aid, and told him Russia was “for

Russians,” we conclude this evidence—and the record as a whole—does not compel

a conclusion contrary to that reached by the agency.

5. As to persecution because of Kocharyan’s political opinions, substantial

evidence supports the agency’s determination that Kocharyan failed to establish past

persecution or a reasonable fear of future persecution. Kocharyan testified police

used violence to disperse large crowds at protests Kocharyan attended. But

Kocharyan failed to establish he had ever been singled out for mistreatment because

of his political opinions, or that anyone is currently searching for him because of his

4 participation in anti-Putin demonstrations. Additionally, the single time Kocharyan

was detained for protesting, he was unharmed and released from custody the next

day.

6. Withholding of removal as applied to Russia. Because substantial evidence

supports the agency’s denial of asylum, we conclude substantial evidence also

supports its denial of withholding of removal. See Ramirez-Munoz v. Lynch, 816

F.3d 1226, 1230 (9th Cir. 2016) (“A petitioner who fails to satisfy the lower standard

of proof for asylum necessarily fails to satisfy the more stringent standard for

withholding of removal.”).

7. Protection under CAT as applied to Armenia and Russia. Lastly, because

the BIA correctly and summarily concluded Kocharyan waived his CAT claims on

appeal from the IJ, see Alanniz v. Barr, 924 F.3d 1061, 1068-69 & n.8 (9th Cir.

2019), Kocharyan’s administrative remedies have not been exhausted as to these

claims and we lack jurisdiction to review them. See Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004).

PETITION FOR REVIEW DENIED.