NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEROB KOCHARYAN, No. 19-73117
Petitioner, Agency No. A215 680 316
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 3, 2021**
Pasadena, California
Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge.
Petitioner Kerob Kocharyan, a native and citizen of Armenia, seeks review of
a decision from the Board of Immigration Appeals (BIA) affirming the denial of his
*
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).
***
The Honorable Michael Howard Simon, United States District Judge for
the District of Oregon, sitting by designation.
requests for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review.
We review agency denials of asylum, withholding of removal, and relief under
CAT for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.
2017). Under this standard, we must uphold the agency’s determination unless any
reasonable trier of fact “would be compelled” to conclude to the contrary based on
the evidence in the record. Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir.
2018) (citation omitted). Here, we conclude substantial evidence supports the BIA’s
decision and deny Kocharyan’s petition.
In removal proceedings before the Immigration Judge (IJ), Kocharyan
testified that he fears he will be persecuted and/or tortured if removed to Armenia—
where he is a citizen—because his wife was raped by an Armenian oligarch when
she was 16 years old and the man who committed the crime remains a powerful
political figure in Armenia. Additionally, Kocharyan testified that two of his
brothers were killed in Armenia during clashes between Armenians and
Azerbaijanis, and that a few times he himself was the victim of “fights and beatings”
because of his “Turk origins.”
Kocharyan testified he also fears he will be persecuted and/or tortured if
removed to Russia—where he lived from 2000 until he arrived in the United States
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in 2018—because of his Armenian nationality and/or political opinions concerning
the Putin administration.
1. Asylum from Armenia. The agency determined Kocharyan was not eligible
for asylum from Armenia because he was “firmly resettled” in Russia before arriving
in the United States. See 8 U.S.C. § 1158(b)(2)(A)(vi). Kocharyan has waived
review of this determination by failing to raise it “specifically and distinctly” in his
opening brief before this Court. See Diego v. Sessions, 857 F.3d 1005, 1015 n.4 (9th
Cir. 2017) (citation omitted). Accordingly, we deny Kocharyan’s petition to the
extent it seeks review of his denial of asylum from Armenia.
2. Withholding of removal as applied to Armenia. We also deny Kocharyan’s
petition to the extent it seeks review of his denial of withholding of removal from
Armenia. Because Kocharyan was able to travel to Armenia safely—almost
annually between 2000 and 2018, and sometimes with his wife and children, to visit
his parents who continue to reside there—substantial evidence supports the BIA’s
determination that Kocharyan failed to establish it is “more likely than not” that he
will face future persecution there. Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001)
(“An applicant’s claim of persecution upon return is weakened, even undercut, when
similarly-situated family members continue to live in the country without incident,
or when the applicant has returned to the country without incident.” (internal
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citations omitted)), superseded by statute on other grounds as stated in Ramadan v.
Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).
3. Asylum from Russia. Substantial evidence also supports the agency’s
denial of Kocharyan’s petition for asylum as applied to Russia.
4. As to persecution because of Kocharyan’s nationality, substantial evidence
supports the agency’s determination that Kocharyan failed to meet his burden of
establishing that the Russian government is “unable or unwilling” to protect him.
Castro-Perez v. Gonzales, 409 F.3d 1069, 1071 (9th Cir. 2005). During a 2005
assault in which Kocharyan was a victim, the police detained Kocharyan’s
assailants. And during a 2013 assault against Kocharyan, the police “calmed the
situation down.” Although Kocharyan testified the police “smirk[ed]” while he was
being attacked, delayed in rendering him aid, and told him Russia was “for
Russians,” we conclude this evidence—and the record as a whole—does not compel
a conclusion contrary to that reached by the agency.
5. As to persecution because of Kocharyan’s political opinions, substantial
evidence supports the agency’s determination that Kocharyan failed to establish past
persecution or a reasonable fear of future persecution. Kocharyan testified police
used violence to disperse large crowds at protests Kocharyan attended. But
Kocharyan failed to establish he had ever been singled out for mistreatment because
of his political opinions, or that anyone is currently searching for him because of his
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participation in anti-Putin demonstrations. Additionally, the single time Kocharyan
was detained for protesting, he was unharmed and released from custody the next
day.
6. Withholding of removal as applied to Russia. Because substantial evidence
supports the agency’s denial of asylum, we conclude substantial evidence also
supports its denial of withholding of removal. See Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1230 (9th Cir. 2016) (“A petitioner who fails to satisfy the lower standard
of proof for asylum necessarily fails to satisfy the more stringent standard for
withholding of removal.”).
7. Protection under CAT as applied to Armenia and Russia. Lastly, because
the BIA correctly and summarily concluded Kocharyan waived his CAT claims on
appeal from the IJ, see Alanniz v. Barr, 924 F.3d 1061, 1068-69 & n.8 (9th Cir.
2019), Kocharyan’s administrative remedies have not been exhausted as to these
claims and we lack jurisdiction to review them. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.
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