FILED
NOT FOR PUBLICATION OCT 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VARDITER KOCHARYAN, No. 07-73816
Petitioner, Agency No. A079-542-095
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2011 **
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and HATTER, Senior
District Judge.***
Varditer Kocharyan (Kocharyan), a native and citizen of Armenia, petitions
for review of the decision of the Board of Immigration Appeals (BIA), affirming
*
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. P. 34(a)(2).
***
The Honorable Terry J. Hatter, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
the Immigration Judge’s (IJ) denial of her applications for asylum, withholding of
removal, and relief pursuant to the Convention Against Torture (CAT). Kocharyan
seeks, in the alternative, discretionary relief from removal pursuant to 8 C.F.R. §
1208.13(b)(1)(iii), under the humanitarian principles set forth in Matter of Chen,
20 I&N Dec. 16 (BIA 1989).
1. The State Department country reports relied upon by the BIA fall
short of providing substantial evidence to support the determination that the
government proved by a preponderance of the evidence that a fundamental change
in country conditions has occurred such that Kocharyan’s fear of religious
persecution is not well-founded. See Kamalyan v. Holder, 620 F.3d 1054, 1058
(9th Cir. 2010). The country reports did not in any way relate to Petitioner’s
individual circumstances. Thus, we remand to the BIA to conduct an
individualized analysis of whether changed country conditions in Armenia affect
the reasonableness of Kocharyan’s fear of future persecution. See Lopez v.
Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004); see also Gonzalez-Hernandez v.
Ashcroft, 336 F.3d 995, 997-99 (9th Cir. 2003) (holding that State Department
country reports are sufficient to support the BIA’s decision only if the BIA
conducts a tailored analysis of how the general changes described in the report
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address the specific grounds underlying the petitioner’s fear of persecution);
Kamalyan, 620 F.3d at 1057 (“Our circuit has reiterated that a State Department
report on country conditions, standing alone, is not sufficient to rebut the
presumption of future persecution when a petitioner has established past
persecution. . . .”) (citation and internal quotation marks omitted).
2. Kocharyan failed to exhaust the alternative claim for humanitarian
asylum because she did not present it to the BIA. See Rodas-Mendoza v. I.N.S.,
246 F.3d 1237, 1240 (9th Cir. 2001). We therefore do not address this claim. See
id.
3. Kocharyan waived any claims for withholding of removal or relief
pursuant to the CAT because she failed to mention either form of relief in her
opening brief, let alone to argue these claims “specifically and distinctly . . .”
Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(citation omitted).
PETITION DENIED IN PART; GRANTED IN PART AND
REMANDED. Each party shall bear its own costs on appeal.
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