FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK YEGLARYAN, No. 09-70844
Petitioner, Agency No. A099-070-451
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2012
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
Applicant Mark Yeglaryan petitioned for review of the Board of
Immigration Appeals’ decision denying asylum, withholding of removal, and relief
under the Convention Against Torture, as well as his motion to remand and his due
process claim. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition
for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Yeglaryan argues that his alleged marriage to a U.S. citizen and his belief
that his wife had begun to prepare a visa petition on his behalf, constituted
extraordinary circumstances excusing his untimely asylum application. Even
assuming we have jurisdiction to consider this issue, Yeglaryan’s circumstances
were not extraordinary. Marriage to a U.S. citizen is not a circumstance related to
an untimely filing of an asylum application. See 8 C.F.R. § 208.4(a)(5). Nor would
Yeglaryan’s belief that his wife was preparing a visa application on his behalf have
prevented him from applying for asylum at the same time, see, e.g., Toj-Culpatan
v. Holder, 612 F.3d 1088, 1090–92 (9th Cir. 2010), particularly since his wife was
allegedly working on the visa application for only a portion of Yeglaryan’s filing
delay. Moreover, the length of Yeglaryan’s delay in filing was unreasonable, see 8
C.F.R. § 208.4(a)(5); he applied over a year after his visa expired, Singh v. Holder,
656 F.3d 1047, 1056 (9th Cir. 2011) (holding that a six-month delay is
presumptively reasonable).
Similarly, we conclude that the BIA properly denied Yeglaryan’s motion to
remand because he could not have established a “prima facie case” of
extraordinary circumstances. Delgado-Ortiz v.Holder, 600 F.3d 1148, 1151 (9th
Cir. 2010). Moreover, Yeglaryan’s due process claim also fails for the reasons
explained. Although the IJ pretermitted Yeglaryan’s opportunity to present
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evidence regarding his marriage to a U.S. citizen, making the proceeding
incomplete and, therefore, unfair, see Cano-Merida v. INS, 311 F.3d 960, 965 (9th
Cir. 2002); Colmenar v. INS, 210 F.3d 967, 971–72 (9th Cir. 2000), Yeglaryan has
not shown prejudice, see Colmenar, 210 F.3d at 972, since those facts could not
have established extraordinary circumstances.
Yeglaryan also argues that he is eligible for withholding of removal.
Although Yeglaryan was subjected to offensive treatment, the record does not
compel a finding of past persecution under our precedent. See INS v. Elias-
Zacarias, 502 U.S. 478, 483–84 (1992). While Yeglaryan was arrested and beaten
on two occasions, he was never threatened. Though violence coupled with
detention can sometimes amount to persecution, this is not always the case, see Gu
v. Gonzales, 454 F.3d 1014, 1019–21 (9th Cir. 2006); Prasad v. INS, 47 F.3d 336,
339–40 (9th Cir. 1995), and in cases where we have found persecution the alien
was either detained longer than Yeglaryan or death threats were involved. See, e.g.,
Ahmed v. Keisler, 504 F.3d 1183, 1193–94 (9th Cir. 2007); Guo v. Ashcroft, 361
F.3d 1194, 1203 (9th Cir. 2004); Mamouzian v. Ashcroft, 390 F.3d 1129, 1132,
1134 (9th Cir. 2004); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000).
Furthermore, even though Yeglaryan believes his uncle was killed because of his
political opinion, we have previously found persecution based on violence to
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family members generally where there were also threats made to the alien, such
that the violence to the family was an extension of threats to the alien and
“demonstrated that the danger threatened [to the alien] . . . was real.” Baballah v.
Ashcroft, 367 F.3d 1067, 1074–75 (9th Cir. 2004); see also Mashiri v. Ashcroft,
383 F.3d 1112, 1120–21 (9th Cir. 2004).
Nor does the record compel a finding of a clear probability of future
persecution. Yeglaryan has not shown that the government has a continuing
interest in him such that he will be singled out individually if he returns. See
Prasad, 47 F.3d at 339–40. As the BIA held, his claim that two individuals in
civilian clothes visited his former neighbors to inquire about him on two occasions
is “too attenuated.”
We also lack jurisdiction to consider Yeglaryan’s claim that he is entitled to
relief under the Convention Against Torture. Since he did not raise this claim in his
notice of appeal before the BIA, the BIA properly declined to consider it. See
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
PETITION DENIED.
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