NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SYUZANNA BAGHDASARYAN, No. 06-71727
Petitioner, Agency No. A095-600-145
v.
MEMORANDUM*
ERIC H. HOLDER Jr., Attorney General,
Respondent.
SYUZANNA BAGHDASARYAN, No. 07-72258
Petitioner, Agency No. A095-600-145
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 14, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.
Petitioner Syuzanna Baghdasaryan, a citizen of Armenia and a Pentecostal
Christian, timely petitions for review of an order of the Board of Immigration
Appeals denying her application for asylum and withholding of removal. She also
separately petitions for review of a BIA order denying her motion to reopen.
Because the parties are familiar with the facts and procedural history of this case,
we will discuss them only as necessary to explain our decision. We have
jurisdiction pursuant to 8 U.S.C. § 1252(b). We grant petition no. 06-71727 in part
and deny it in part, and we dismiss petition no. 08-72258 as moot.
“Where, as here, the BIA cites its decision in [Matter of] Burbano, [20 I&N
Dec. 872, 874 (BIA 1994),] and does not express disagreement with any part of the
IJ’s decision, we review the IJ’s decision as if it were the BIA’s decision.”
Tampubolon v. Holder, ___ F.3d ___, 2010 WL 2541610, *2 (9th Cir. Jun. 25,
2010) (citation omitted). The BIA’s determination of legal issues is reviewed de
novo, except that deference is owed to its reasonable construction of its own
governing statutes and regulations. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th
Cir. 2008) (citations omitted). Factual findings are reviewed for substantial
evidence. Zhou v. Gonzales, 437 F.3d 860, 864 (9th Cir. 2006) (citation omitted).
Under this standard, a factual determination is upheld if it is “supported by
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reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. at 864–65 (internal quotation marks and citations omitted).
No. 06-71727
Baghdasaryan first claims that the immigration judge erred in denying her
asylum application. Because the government stipulated that Baghdasaryan was a
credible witness and that she had suffered past persecution on account of her
religion, she is a refugee eligible for asylum. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(A); 8 C.F.R. § 1208.13(a), (b)(1). The burden of proof then shifted to
the government to prove that country conditions had changed such that her fear of
future persecution was no longer well-founded. 8 C.F.R. § 1208.13(b)(1)(i)(A).
The government offered four documents, including country reports, from 2003 and
2004; the IJ cited these documents as demonstrating country conditions had
changed. However, Baghdasaryan submitted similar documents from 1999 and
2000—the period in which Baghdasaryan actually suffered persecution—as well as
2002. These earlier reports, which the IJ did not reference, were nearly identical to
the later reports. The record as a whole demonstrated there was no change in
country conditions from the period of her past persecution to the time of the
hearing. The IJ erred in concluding otherwise. We grant Baghdasaryan’s petition
for review on this basis.
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Baghdasaryan also argues that she should have been granted asylum on
humanitarian grounds. Having established past persecution, she could be granted
asylum if she had “demonstrated compelling reasons for being unwilling or unable
to return to the country arising out of the severity of the past persecution.” 8
C.F.R. § 1208.13(b)(1)(iii)(A). Relief on humanitarian grounds is limited to
situations where the past persecution was especially abhorrent, atrocious, unusual,
or severe. See, e.g., Matter of Chen, 20 I & N. Dec. 16 (BIA 1989); Vogsakdy v.
INS, 171 F.3d 1203 (9th Cir. 1999). The IJ’s finding that Baghdasaryan’s past
persecution was not especially abhorrent is supported by substantial evidence.
Next, Baghdasaryan contends that the IJ erred in rejecting her application for
withholding of removal. Withholding of removal is mandatory if an alien
establishes a clear probability that her life or freedom would be threatened due to
her religion if she returned to her home country. 8 U.S.C. § 1231(b)(3)(A); Lanza
v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (citation omitted). As with an
application for asylum, if an alien establishes past persecution, it is presumed that
her life or freedom would be threatened upon return, and the burden shifts to the
government to rebut the presumption by proving changed country conditions. 8
C.F.R. § 208.16(b)(1)(i)(A). As discussed above, there is no substantial evidence
in the record to support the IJ’s conclusion that the government met its burden to
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show changed country conditions. Baghdasaryan’s petition is granted on this
basis; she is entitled to withholding of removal.
Baghdasaryan also argues she should have been granted protection under the
Convention Against Torture. Where there are substantial grounds for believing an
alien would be tortured if returned to her home country, withholding of removal is
required. Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005). Torture is “an
extreme form of cruel and inhuman treatment” “by which severe pain or suffering
. . . is intentionally inflicted on” another by or with the acquiescence of
government officials. 8 C.F.R. § 208.18(a). The alien bears the burden of proving
it is more likely than not she would be tortured if removed to her home country.
Nuru, 404 F.3d at 1216. Baghdasaryan failed to adduce any evidence that she
would be tortured if she returned to Armenia. The IJ did not err in denying relief
on this ground.
No. 07-72258
In a separate petition, Baghdasaryan seeks review of the BIA’s denial of her
motion to reopen the removal proceedings. In light of the foregoing disposition,
this petition is now moot.
Each party shall bear its own costs on appeal.
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No. 06-71727, petition GRANTED in part, DENIED in part, and
REMANDED.
No. 07-72258, petition DISMISSED as moot.
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