Kechichian v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1584

ASTGHIK KECHICHIAN,

Petitioner,

v.

MICHAEL MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Selya, Senior Circuit Judge,
Howard, Circuit Judge.

Igor Freyman, Mulvey, Sneider & Freyman, PC, Susanna L.
Shafer, and Law Office of Susanna L Shafer on brief for petitioner.
Kathryn L. Deangelis, Trial Attorney, Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Civil Division, and Terri J.
Scadron, Assistant Director, U.S. Department of Justice, Office of
Immigration Litigation, on brief for respondent.

July 23, 2008
 LYNCH, Chief Judge. Astghik Kechichian, a native and

citizen of Armenia, petitions for review of a final order of

removal of the Board of Immigration Appeals ("BIA"). The BIA

agreed with the finding of the Immigration Judge ("IJ") that

Kechichian is not entitled to withholding of removal because she

has not shown that it is more likely than not she would be

persecuted were she to return to Armenia. The BIA declined to

address Kechichian's argument that she is a member of a social

group of people with mental illness requiring treatment because she

had failed to raise that argument before the IJ. The BIA also

refused to remand the case to the IJ on account of a newly produced

certificate from the Armenian Embassy stating that Kechichian's son

is not an Armenian citizen.

We deny the petition for review.

I.

Kechichian entered the United States on December 17, 1996

with a non-immigrant visitor visa valid through December 16, 1997.

On April 9, 2001, she was served with a Notice To Appear, charging

that she had remained in the United States beyond December 16, 1997

without authorization.

In pleadings before the IJ on May 9, 2001, Kechichian

conceded that she was removable as charged in the Notice To Appear.

On February 15, 2005, Kechichian filed an application for asylum,

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withholding of removal, and protection under the Convention Against

Torture ("CAT").1

An affidavit accompanying Kechichian's application stated

that her father had fled Armenia in 1991, was currently residing in

the United States, and had a pending application for asylum. In

Armenia, her father had been a doctor and a writer who challenged

and frequently came into conflict with government authorities, as

a result of which he was harassed and eventually fired from his

job. Kechichian's brother was also a doctor. In 1993, he refused

to cover up the beating of an anti-government activist, as a result

of which he was beaten and held overnight by the government and

fired from his job at a hospital. He found a new position, and in

April 1996, he was ordered to inject lethal substances into two

members of an opposition party, which he refused to do. He escaped

the hospital where he worked and, after learning that the

government was looking for him, he fled Armenia in June 1996.

Kechichian further stated that she did not want to return

to Armenia because she feared she would be persecuted by the

government just as her brother was. She noted that she is also a

doctor, and "I know that I would be similarly threatened by the

1
Kechichian was originally party to joint removal
proceedings with her ex-husband, who applied for asylum in 2000,
and her son, who was born in 1992. After she and her husband
divorced, the proceedings were adjourned so that Kechichian could
pursue relief separately. At a hearing before the IJ on June 8,
2005, Kechichian's son's case was consolidated with his father's
case.

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administration of the hospitals, wh[ich] are government controlled,

to follow their instructions." She also said that she fears her

son would be persecuted, refused Armenian citizenship, and unable

to attend school because his father was not an Armenian citizen.

A hearing was held before the IJ on June 8, 2005. At

this hearing, Kechichian testified that she is a native and citizen

of Armenia. She was married in 1990. She graduated from medical

school in 1992 and is licensed to practice medicine in Armenia, but

she has never practiced medicine in Armenia or elsewhere. Her son

was born in Armenia but he is not an Armenian citizen because his

father was not.

Kechichian testified that she lived in Lebanon from 1992

to 1995 because her husband was a Syrian citizen and his family

lived in Lebanon. Kechichian left Lebanon in September or October

of 1995 because she was depressed and wanted to see her family in

Armenia. She said that she came with her son to the United States

in December 1996 in order to visit her father and to seek advice

regarding her son's lack of Armenian citizenship.

Kechichian stated that she never practiced medicine

because she left Armenia shortly after her marriage and she could

not practice medicine in Lebanon without being a Lebanese citizen.

Kechichian testified that she does not want to return to

Armenia because she wants to stay with her son and family and

because she fears that she could be harmed because of her

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relationship to her brother. She also said that if she were to

return to Armenia, she does not know how she would support herself

because she does not think she could find a job as a physician on

account of her brother.

Kechichian further testified that her mother is divorced

from her father, continues to live in Armenia, works at a hospital

as a physician, and has never been arrested or harmed. She also

testified that she has extended family members who live in Armenia

and she is unaware of any of them being persecuted.

The record before the IJ also included a psychiatric

evaluation of Kechichian conducted by a forensic nurse. This

evaluation documents that Kechichian suffered depression while

living in Lebanon and has continued to struggle with symptoms since

coming to the United States, although she is hesitant to discuss

these problems. The evaluation further states that although

Kechichian did not suggest anything of the sort, it is possible

that "her reluctance to discuss her psychiatric symptoms is

consistent with reports that the mentally ill are often shunned by

their communities in Armenia." It also notes that Armenian

legislation protecting the rights of the mentally ill was "only

recently passed in June 2004" and that the "resources available in

Armenia to treat mental illness are lacking" and there is

"significant social stigma attached to needing such care."

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 In an oral decision, the IJ found that Kechichian had not

met her burden of establishing entitlement to withholding of

removal because she had not established a "nexus" between her

brother's and father's situations and her own. The IJ also found

that Kechichian had not demonstrated eligibility for CAT relief,

and that even if she were statutorily eligible for asylum -- a

question he did not decide -- she would not be able to make the

required showing that a reasonable person in her position would

have a well-founded fear of future persecution. The IJ granted

Kechichian voluntary departure.

Kechichian appealed the IJ's decision to the BIA. She

included with her appeal a certification from the Armenian Embassy

that her son is not considered to be an Armenian citizen, and she

requested that the BIA remand the case to the IJ to consider this

new evidence because her "fear of return to Armenia rests in part

upon her fear for her . . . son's persecution on account of his

nationality." She also argued that she is a member of a particular

social group of people with mental illness requiring treatment and

that she fears persecution on the basis of her membership in this

group. She asserted that her psychiatric evaluation provided the

basis for this claim and that the IJ erred by not considering that

she might face persecution on the basis of her mental illness.2

2
Kechichian did not raise her CAT claim before the BIA,
and we therefore do not address it further. Sela v. Mukasey, 520
F.3d 44, 47 (1st Cir. 2008).

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 On March 13, 2007, the BIA issued its own opinion and

dismissed Kechichian's appeal. It held that she failed to

demonstrate that she is entitled to withholding of removal because

(1) unlike her brother, she is not a member of a social group of

physicians unwilling to participate in government corruption

because she has never actually practiced medicine, and (2) she has

not shown that she is more likely than not to be harmed on account

of her relationship to her brother because she has not been

persecuted on that basis in the past and her mother and extended

family have remained in Armenia without incident. The BIA declined

to address Kechichian's argument that she is a member of a

particular social group of people with mental illness requiring

treatment because she had failed to raise this as an issue before

the IJ. Finally, the BIA declined to remand the case to the IJ

based on the embassy certificate because even if Kechichian's son

is not an Armenian citizen and even if she fears that he might be

harmed because of his lack of citizenship, she had not demonstrated

how this would entitle her to withholding of removal. Kechichian

was again granted voluntary departure.

II.

Before us, Kechichian challenges (1) the BIA's conclusion

that she was not entitled to withholding of removal on account of

both her membership in a social group of physicians who refuse to

participate in government corruption and her membership in a

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persecuted family; (2) the BIA's refusal to consider her mental

health status as a part of her claim; and (3) the BIA's refusal to

remand the case to the IJ to consider the newly introduced

evidence. She also argues that her due process rights were

violated by the IJ's and BIA's failure to consider her mental

health argument.

A. Withholding of Removal

We review the BIA's factual findings under the

deferential substantial evidence standard. We accept these

findings unless "any reasonable adjudicator would be compelled to

conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also,

e.g., Chikkeur v. Mukasey, 514 F.3d 1381, 1382-83 (1st Cir. 2008);

Ferdinandus v. Gonzales, 504 F.3d 61, 63 (1st Cir. 2007). This

includes determinations regarding withholding of removal. Sharari

v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005).

The provision of the Immigration and Nationality Act

concerning withholding of removal provides that an alien must show

"that the alien's life or freedom would be threatened in that

country because of the alien's race, religion, nationality,

membership in a particular social group, or political opinion." 8

U.S.C. § 1231(b)(3)(A). A social group consists of persons "all of

whom share a common, immutable characteristic." Silva v. Ashcroft,

394 F.3d 1, 5 (1st Cir. 2005). Such claims are usually based on

gender, kinship units, or family membership. Id.

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 The burden is on the applicant to establish that she

would be threatened on one of the five statutory grounds. 8 C.F.R.

§ 208.16(b). An applicant can make this showing by demonstrating

past persecution, which gives rise to a rebuttable presumption of

future persecution, or by showing that it is "more likely than not"

that she will be persecuted in the future on one of the statutory

grounds. Id. § 208.16(b)(1), (b)(2). See Sela v. Mukasey, 520

F.3d 44, 46 (1st Cir. 2008). Kechichian concedes that she has not

suffered past persecution; rather, her claim is based on the

possibility of future persecution.

The BIA found that Kechichian was not a member of a group

of physicians unwilling to participate in government corruption

because she was never actually a practicing physician. This

finding is supported by substantial evidence. Even assuming that

a group of physicians opposing government practices would qualify

as a social group, see Silva, 394 F.3d at 5-6, a question that none

of the parties has addressed, Kechichian has provided no evidence

that she is a member of such a group. She has established that she

graduated from medical school and is licensed as a doctor in

Armenia. However, at no time has she practiced medicine in Armenia

or anywhere else.

The BIA also found that Kechichian had failed to prove

that it is more likely than not that she will be harmed because of

her relationship to her brother. This determination is similarly

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supported by substantial evidence. Kechichian's mother, a

physician who works in a hospital, has remained in Armenia without

incident, as have members of her extended family. See Bakuaya v.

Mukasey, Nos. 07-1667, 07-2439, ___ F.3d ___, 2008 WL 2719887, at

*2 (1st Cir. July 14, 2008); see also, e.g., Sela, 520 F.3d at 47;

Ferdinandus, 504 F.3d at 63. Kechichian does not deny the

continuing presence of her family in Armenia; rather, she suggests

that because her parents are divorced, her situation might differ

from her mother's. Nothing compelled the BIA to conclude this was

a significant distinction. Her mother is closely related to her

brother, yet she has never been harmed. Moreover, Kechichian's

claim is weakened by the fact that she was present in Armenia

without incident between June 1996, when her brother fled the

country because the government was supposedly in hot pursuit of

him, and December 1996, when she left Armenia for other reasons.3

3
Kechichian's original application was for asylum as well
as withholding of removal. The IJ focused on withholding of
removal and noted that even if she were statutorily eligible for
asylum, a question he did not decide, Kechichian could not make the
required showing. The BIA did not address the asylum claim at all.
In her briefs to both the BIA and this court, Kechichian does not
refer to asylum per se but couches her arguments in terms of "well-
founded fear of future persecution," which is the standard for
demonstrating eligibility for asylum. See 8 U.S.C. §
1101(a)(42)(A).
Even if Kechichian's claim for asylum were properly
before us and not waived, a question we need not decide, it would
fail. To demonstrate eligibility for asylum based on future
persecution, an applicant must have a "well-founded" fear of
persecution, meaning a fear that is both "subjectively genuine" and
"objectively reasonable." Santosa v. Mukasey, 528 F.3d 88, 93 (1st
Cir. 2008). Kechichian does not come close to making such a

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B. Mental Illness Claim

The BIA declined to address Kechichian's mental illness

argument because "[w]e are an appellate body, and we will not

address arguments raised for the first time on appeal." "The

agency's responses to abstract legal questions and its application

of the law are matters that invite de novo review, with deference

accorded to its reasonable interpretation of statutes and

regulations" within its purview. Segran v. Mukasey, 511 F.3d 1, 5

(1st Cir. 2007).

Kechichian did not ever suggest that there was a mental

illness aspect to her claim in her application for relief, her

affidavit, or her testimony before the IJ. Her only basis for

arguing that this claim was presented to the IJ is the reference to

Armenia's treatment of the mentally ill in the psychiatric

evaluation prepared by a forensic nurse and included in the record

before the IJ. This evaluation focused on the nurse's observations

of Kechichian and noted in passing the possibility of

discrimination against the mentally ill and fewer treatment options

in Armenia. The evaluation explicitly stated that it was not

Kechichian herself who raised this issue: "While not specifically

identified by [Kechichian], her reluctance to discuss her

psychiatric symptoms is consistent with reports that the mentally

ill are often shunned by their communities in Armenia." It was not

showing.

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error for the BIA to determine that the argument was waived. See

Estrada-Canales v. Gonzales, 437 F.3d 208, 220 (1st Cir. 2006).

Kechichian also asserts that the IJ's failure to consider

the mental illness aspect of her claim violated her right to due

process. We cannot consider this argument because she failed to

present it to the BIA and it does not qualify for one of the few

narrow exceptions to the exhaustion requirement. Kandamar v.

Gonzales, 464 F.3d 65, 71 (1st Cir. 2006).

Kechichian further claims that the BIA's refusal to

consider her mental illness claim violated her right to due process

at the BIA level. This argument clearly fails. "An alien has no

constitutional right to any administrative appeal at all."

Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003).

C. New Evidence and Refusal To Remand

The BIA treated Kechichian's request for a remand as a

motion to reopen, which must state "new facts that will be proven

at a hearing to be held if the motion is granted." 8 C.F.R. §

1003.2(c)(1); see also Zeru v. Gonzales, 503 F.3d 59, 71 (1st Cir.

2007). A motion to reopen must be denied unless the new evidence

"establishes a prima facie case for the underlying substantive

relief." Chikkeur, 514 F.3d at 1383.

We review the denial of a motion to reopen for abuse of

discretion. Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

"This means, in effect, that such a decision will stand unless the

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complaining party can show that the BIA committed an error of law

or exercised its judgment in an arbitrary, capricious, or

irrational way." Id.

The BIA refused to reopen Kechichian's case because it

held that even if her son were potentially subject to persecution

in Armenia, that would not entitle her to relief. This circuit has

not considered a parent's claim of psychological harm based solely

on a child's potential persecution, but the BIA has foreclosed such

claims. In re A- K-, 24 I. & N. Dec. 275, 278 (B.I.A. 2007)

("[A]llowing an applicant to obtain asylum or withholding of

removal through persecution to his child would require granting

relief outside the statutory . . . scheme established by

Congress."); see also Niang v. Gonzales, 492 F.3d 505, 513 (4th

Cir. 2007) (refusing to recognize a claim based on a child's

potential persecution). Kechichian argues that the Sixth Circuit

reached a different conclusion in a case involving a mother who

feared her daughter would be subject to genital mutilation if they

were forced to return to Ethiopia. Abay v. Ashcroft, 368 F.3d 634,

636 (6th Cir. 2004). However, that is the "only federal decision"

to have reached such a result, Niang, 492 F.3d at 512, it is

factually distinguishable from Kechichian's case, and in any event

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it does not bind this circuit. There was no error of law and no

abuse of discretion.4

The petition for review is denied.

4
To the extent that Kechichian might be making a
derivative claim based on her son's potential persecution, that
claim is clearly foreclosed by statute. See Niang, 492 F.3d 512-
13; In re A- K-, 24 I. & N. Dec. 275 at 279 (noting that the
statute "does not permit derivative withholding of removal under
any circumstances").

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