Lilit Stepanyan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 25 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LILIT STEPANYAN, No. 10-70602

Petitioner, Agency No. A98 818 571

v.
MEMORANDUM *
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,

Respondent.

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

Submitted May 16, 2014**
San Francisco, California

Before: M. MARGARET MCKEOWN and MILAN D. SMITH JR., Circuit
Judges, and JAMES V. SELNA, *** District Judge.

Petitioner Lilit Stepanyan (“Stepanyan”), a citizen of Armenia, appeals the

*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R App. 34(a)(2).
***
The Honorable James V. Selna, United States District Judge for the Central
District of California, sitting by designation.

1
final administrative order issued by the Board of Immigration Appeals (“BIA”)

denying her applications for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). This Court has jurisdiction pursuant to 8

U.S.C. § 1252.

This Court reviews the BIA’s denial of an applicant’s asylum claim under

the substantial evidence standard. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.

2006). BIA denials of withholding and CAT protection are also reviewed under the

substantial evidence standard. Lanza v. Ashcroft, 389 F.3d 917, 933, 936 (9th Cir.

2004). Substantial evidence supports the BIA’s findings. Therefore, we deny the

petition for review.

There is substantial evidence to support the BIA’s decision that Stepanyan

failed to present a viable claim for asylum. The BIA reversed the Immigration

Judge’s (“IJ’s”) adverse credibility finding and concluded that Stepanyan’s

testimony demonstrated past persecution on the basis of imputed political opinion.

A showing of past persecution results in a presumption of a “well-founded fear of

future persecution.” 8 C.F.R. § 1208.13(b)(1). However, the BIA went on to affirm

the IJ’s conclusion that the government had rebutted this presumption in light of

Stepanyan’s fundamentally changed circumstances pursuant to 8 C.F.R.

§ 1208.13(b)(1)(i)(A). The BIA based this conclusion on the fact that Stepanyan’s

2
prior persecution was related to her contribution to her husband’s opposition

political efforts. The BIA noted that Stepanyan’s husband no longer resides

Armenia and that there is no indication in the record that he will return there.1 In

addition, the BIA emphasized that Stepanyan had indicated that she does not

belong to any political organizations in Armenia or have any friends within any

political party. As a result, the BIA concluded that the evidence in the record

rebutted the regulatory presumption of a well-founded fear of future persecution.

Stepanyan argues that the BIA improperly relied upon changes in her

personal situation to rebut the presumption of a well-founded fear of future

persecution, and insists that the BIA can only consider changes in Armenia’s

country conditions. However, the language in the applicable asylum regulation

does not support Stepanyan’s position. An earlier version of 8 C.F.R.

§ 208.13(b)(1)(i)(A) did limit the government’s rebuttal of the presumption to

evidence that “conditions in the applicant’s country of nationality or last habitual

residence have changed.” 8 C.F.R. § 208.13(b)(1)(i)(A) (1999). However, this

language was broadened on December 6, 2000 to provide that the government can

rely upon evidence of “fundamental change in circumstances such that the

applicant no longer has a well-founded fear of persecution.” 8 C.F.R.

1
Stepanyan’s brief indicates that she is “estranged” from her husband and that they are
“no longer a couple.” (Petitioner’s Opening Brief in Support of Appeal (“Pet. Op. Br.”) 17.)

3
§ 208.13(b)(1)(i)(A); see also Asylum Procedures, 65 Fed. Reg. 76121, 76127

(Dec. 6, 2000) (noting that “the presumption may be overcome by events other

than a change in country conditions”). We defer to the conclusion of the BIA that

“fundamental change[s] in circumstances” can include changes in a petitioner’s

personal circumstances. See Garcia-Quintero v.Gonzales, 455 F.3d 1006, 1012

(9th Cir. 2006). Nothing in our caselaw compels the contrary conclusion. Cf. Qu v.

Gonzales, 399 F.3d 1195, 1201 (9th Cir. 2005). The evidence in the record

substantially supports the BIA’s conclusion that there has been a fundamental

change in circumstances such that Stepanyan no longer has a well-founded fear of

persecution in Armenia.

We also reject Stepanyan’s contention that we should remand the

proceedings back to the IJ to determine whether she is eligible for humanitarian

asylum.2 Notably, Stepanyan failed to raise this issue on appeal to the BIA.

Consequently, this Court lacks jurisdiction to consider Stepanyan’s claim for

humanitarian asylum because she failed to exhaust her administrative remedies

with respect to that claim. 8 U.S.C. § 1252(d)(1); see, e.g., Barron v. Ashcroft, 358

2
The asylum regulations provide the BIA with discretion to grant humanitarian asylum,
even when petitioner has failed to establish a well-founded fear of future persecution, if “[t]he
applicant has demonstrated compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution” or “[t]he applicant has established that
there is a reasonable possibility that he or she may suffer other serious harm upon removal to
that country.” 8 C.F.R. § 1208.13(b)(1)(iii)(B).

4
F.3d 674, 678 (9th Cir. 2004) (refusing to consider claim for humanitarian asylum

because petitioners failed to raise that issue before the BIA and thereby failed to

exhaust their administrative remedies).

Finally, in order to prevail on her CAT claim, Stepanyan must demonstrate

that it is more likely than not that she will be tortured if removed to Armenia. 8

C.F.R. § 208.16(c)(2); Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).

Substantial evidence also supports the BIA’s conclusion that Stepanyan is not

entitled to CAT protection. Stepanyan argues that the BIA improperly failed to

examine the CAT claim separate and apart from the withholding of removal claim.

While the BIA’s decision does not include an extensive discussion of her CAT

claim, the final decision addresses Stepanyan’s eligibility for CAT protection

separately from its discussion of her asylum and withholding of removal claims

and cites to the applicable regulatory provisions. Furthermore, substantial evidence

in the record supports the BIA’s conclusion that Stepanyan failed to demonstrate

that it is more likely than not that she will face torture upon returning to Armenia.

As discussed above, the record does not indicate that it is likely that she will face

persecution given her husband’s departure from Armenia. Furthermore, while

Stepanyan has testified that she was detained and beaten by the police, it is not

clear that this persecution rises to the level of torture. Accordingly, Stepanyan’s

5
CAT claim also fails.

PETITION FOR REVIEW DENIED.

6