Simonian v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2024
• Docket: 23-4117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWARD SIMONIAN; DAVID No. 23-4117 SIMONIAN; ALEX SIMONIAN, Agency Nos. A205-777-317 Petitioners, A205-777-319 A205-777-320 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted December 3, 2024** Pasadena, California

Before: BYBEE, IKUTA, and BADE, Circuit Judges.

Edward Simonian and his two children (collectively “Simonian”) petition for

review of a decision of the Board of Immigration Appeals (“BIA”) dismissing their

appeal of an immigration judge’s (“IJ”) denial of their applications for asylum,

* 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). withholding of removal, and protection under the Convention Against Torture

(“CAT”). 1 We have jurisdiction over this asylum-only petition under 8 U.S.C.

§ 1252. Bao Tai Nian v. Holder, 683 F.3d 1227, 1230 & n.1 (9th Cir. 2012) (noting

that the term “asylum only” is a misnomer because a petitioner may also seek

withholding of removal). We review legal questions de novo and factual findings

for substantial evidence, and accept factual findings as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Flores

Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022) (quotation marks and citation

omitted). “We review only the BIA’s opinion, except to the extent that it expressly

adopted portions of the IJ’s decision.” Velasquez-Gaspar v. Barr, 976 F.3d 1062,

1064 (9th Cir. 2020) (quotation marks and citation omitted). We deny the petition

for review.

1. Simonian asks us to remand for the BIA to address the IJ’s adverse

credibility determination. But because Simonian does not “coherently develop” this

argument, we conclude that he has forfeited it. Hernandez v. Garland, 47 F.4th 908,

916 (9th Cir. 2022) (quotation marks and citation omitted). Moreover, even

assuming that he was credible, his petition would still fail.

2. Simonian challenges the agency’s finding that he had not suffered past

1 Simonian did not appeal the denial of CAT protection to the BIA and does not present any argument related to his claim for CAT protection on appeal.

2 23-4117 persecution because he failed to demonstrate that the government of the United

Kingdom was unable or unwilling to control Simonian’s attackers. Among other

things, an asylum applicant must establish past persecution or a well-founded fear

of future persecution on account of a protected ground to be statutorily eligible for

asylum. Baghdasaryan v. Holder, 592 F.3d 1018, 1022–23 (9th Cir. 2010); see

Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (“[C]ourts consider the same

factors to determine eligibility for both asylum and withholding of removal,” but the

standard of proof for withholding of removal is higher, requiring a “higher

probability of persecution.”) (quotation marks and citation omitted). To show past

persecution, the applicant must show that “the persecution was committed by the

government, or by forces that the government was unable or unwilling to control.”

Baghdasaryan, 592 F.3d at 1023 (citation omitted). “[U]nwillingness or inability to

control persecutors is not demonstrated simply because the police ultimately were

unable to solve a crime or arrest the perpetrators, where the asylum applicant failed

to provide the police with sufficiently specific information to permit an investigation

or arrest.” Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013). Rather, “a country’s

government is not ‘unable or unwilling’ to control violent nonstate actors when it

demonstrates efforts to subdue said groups.” Hussain v. Rosen, 985 F.3d 634, 648

(9th Cir. 2021) (citation omitted).

Substantial evidence supports the BIA’s finding that the U.K. government

3 23-4117 demonstrated efforts to subdue Simonian’s attackers. The record establishes that

police responded to Simonian’s complaints and took reports of his allegations.

Regarding the 2011 incidents involving his café, Simonian gave descriptions of his

attackers but was otherwise unable to identify them and did not see who later

vandalized the café. After the 2013 incident in the park, police were unable to find

anyone matching Simonian’s description of the attackers. We are “reluctant to infer

government complicity or indifference from the mere fact that” police were unable

to find “unknown assailants.” Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010).

Furthermore, police consistently responded to Simonian’s complaints. For example,

when Simonian’s neighbor allegedly attacked him, police investigated, failed to find

independent evidence that confirmed who the initial aggressor was, and closed the

case. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005) (explaining

that police inability to solve crimes did not demonstrate that the government was

unable or unwilling to control nonstate actors). The evidence does not compel the

conclusion that the U.K. government was unable or unwilling to control Simonian’s

attackers or that it would be unable to do so in the future. See id.

PETITION DENIED.

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