Vigen Najaryan v. Eric Holder, Jr.

Ninth Circuit

Vigen Najaryan v. Eric Holder, Jr.

593 F. App'x 707

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 20, 2015

Docket12-70014

StatusUnpublished

Cited by1 cases

This text of 593 F. App'x 707 (Vigen Najaryan v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Vigen Najaryan v. Eric Holder, Jr., 593 F. App'x 707 (9th Cir. 2015).

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Opinion

MEMORANDUM **

Vigen Voskanovich Najaryan (“Najar-yan”), a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for deferral of removal under the Convention Against Torture (“CAT”). Although Najaryan was removable for having committed a crime of violence, we have jurisdiction under 8 U.S.C. § 1252 because his CAT claim was denied on the merits. See Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007). We review factual findings for substantial evidence. See Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.2008). We deny the petition.

Najaryan was removable because assault with a firearm in violation of California Penal Code section 245(a)(2) is categorically a crime of violence, United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir.2009); see United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009), and thus an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F).

Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), did not undermine the holdings of Heron-Salinas and Grajeda. See United States v. Jimenez-Arzate, 776 F.3d 662, 2015 WL 149802 (9th Cir. Jan. 12, 2015). Ceron relied on the same California Supreme Court case that Heron-Salinas and Grajeda relied on, People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197 (2001). The en banc court in Cerón addressed whether assault with a deadly weapon is a crime involving moral turpitude, not whether it is a crime of violence. See 747 F.3d at 778-79.

Finally, substantial evidence supports the BIA’s decision because Najaryan to Armenia. Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir.2011). .Najaryan’s evidence that, while a child in Armenia, he was kicked and hit by a school teacher, punched by a police officer, and stabbed in the arm by other school boys does not rise to the level of the “severe pain or suffering” that constitutes torture. 8 C.F.R. *708 § 1208.18(a)(1); cf., e.g., Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir.2005), Nor does this evidence demonstrate that he would experience similar treatment upon his return, now approximately twenty years later. Najaryan also has not demonstrated that he would be tortured in Armenia as a conscientious objector to military service. As counsel acknowledged during oral argument, Najaryan has now aged-out of required military service.

PETITION FOR REVIEW DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Vigen Voskanovich Najaryan (“Najar-yan”), a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for deferral of removal under the Convention Against Torture (“CAT”). Although Najaryan was removable for having committed a crime of violence, we have jurisdiction under 8 U.S.C. § 1252 because his CAT claim was denied on the merits. See Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007). We review factual findings for substantial evidence. See Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.2008). We deny the petition.

Najaryan was removable because assault with a firearm in violation of California Penal Code section 245(a)(2) is categorically a crime of violence, United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir.2009); see United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009), and thus an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F).

Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), did not undermine the holdings of Heron-Salinas and Grajeda. See United States v. Jimenez-Arzate, 776 F.3d 662, 2015 WL 149802 (9th Cir. Jan. 12, 2015). Ceron relied on the same California Supreme Court case that Heron-Salinas and Grajeda relied on, People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197 (2001). The en banc court in Cerón addressed whether assault with a deadly weapon is a crime involving moral turpitude, not whether it is a crime of violence. See 747 F.3d at 778-79.

Finally, substantial evidence supports the BIA’s decision because Najaryan to Armenia. Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir.2011). .Najaryan’s evidence that, while a child in Armenia, he was kicked and hit by a school teacher, punched by a police officer, and stabbed in the arm by other school boys does not rise to the level of the “severe pain or suffering” that constitutes torture. 8 C.F.R. *708 § 1208.18(a)(1); cf., e.g., Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir.2005), Nor does this evidence demonstrate that he would experience similar treatment upon his return, now approximately twenty years later. Najaryan also has not demonstrated that he would be tortured in Armenia as a conscientious objector to military service. As counsel acknowledged during oral argument, Najaryan has now aged-out of required military service.

PETITION FOR REVIEW DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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