NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKHAIL SOKOL, No. 20-71361
Petitioner, Agency No. A094-533-494
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 29, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and HUCK,*** District Judge.
Mikhail Sokol, a native and citizen of Ukraine, seeks review of the Board of
Immigration Appeals’ (BIA) decision dismissing his appeal of the Immigration
*
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 Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
Judge’s (IJ) order denying withholding of removal and protection under the
Convention Against Torture (CAT). Factual determinations are reviewed for
substantial evidence and must be upheld unless the record compels a contrary
conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Legal
questions are reviewed de novo. Rivera v. Mukasey, 508 F.3d 1271, 1274–75 (9th
Cir. 2007). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Sokol argues that the IJ erred as a matter of law when it found his armed
robbery conviction was a particularly serious crime. We review a finding that an
offense constitutes a particularly serious crime for an abuse of discretion.
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). “[A] crime is
particularly serious if the nature of the conviction, the underlying facts and
circumstances and the sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095,
1107 (9th Cir. 2011) (en banc). We determine whether a crime is particularly
serious on a case-by-case basis. Matter of Frentescu, 18 I. & N. Dec. 244, 247
(BIA 1982), superseded by statute in part, 8 U.S.C. § 1253(h) (1991), as
recognized in Miguel–Miguel v. Gonzales, 500 F.3d 941, 946 (9th Cir. 2007);
Avendano-Hernandez, 800 F.3d at 1077. By considering the nature of the
conviction, the circumstances and underlying facts of the conviction, and the type
of sentence imposed, the IJ applied the correct legal standard and properly
2
exercised its discretion when it concluded that Sokol’s armed robbery conviction
was a particularly serious crime precluding withholding of removal. See
Frentescu, 18 I. & N. Dec. at 247; Delgado, 648 F.3d at 1107.
Sokol also argues that he should receive withholding of removal because he
proved that he was a member of two particular social groups: Pentecostal
Christians and Ukrainians presumed to be pro-Russian. But as discussed above,
Sokol is not eligible for withholding.
He further argues that he is entitled to protection under the CAT because he
demonstrated that he suffered past persecution and that he more likely than not
would suffer future persecution should he return to Ukraine. These two
arguments—protected social group and persecution—coupled together set out the
persecution standard for asylum, not the torture standard for the CAT. To qualify
for relief under the CAT, Sokol must demonstrate that it is more likely than not
that he would be tortured if removed to Ukraine, and that any torture that he might
face would be “inflicted by or at the instigation of or with the consent or
acquiescence of” the Ukrainian government. See 8 C.F.R. § 208.18(a)(1);
Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001). Although in specific
situations there can be an overlap, torture is not the same as persecution, and
persecution is not always torture. See Singh v. Whitaker, 914 F.3d 654 (9th Cir.
2019) (holding that just because the petitioner “suffered persecution in the past
3
does not necessarily mean he [would] be tortured in the future”). Sokol fails to
argue that he was or is likely to be tortured. Therefore, Sokol has waived his CAT
claim. In re Lowenschuss, 67 F.3d 1394, 1402 (9th Cir. 1995) (“An issue not
discussed in a brief . . . is deemed to be waived.”).
Even if Sokol did not waive his CAT claim, he has not offered sufficient
evidence to compel this Court to find that he is eligible for CAT relief. We review
an IJ’s findings that an applicant is not eligible for relief under the CAT for
substantial evidence and remand only if the record compels a contrary conclusion.
Konou v. Holder, 750 F.3d 1120, 1124 (9th Cir. 2014). Substantial evidence
supports the agency’s determination that Sokol failed to demonstrate that he would
more likely than not be tortured upon his return to Ukraine because the past harm
Sokol experienced did not rise to the level of past torture. Substantial evidence
also supports the agency’s determination that Sokol does not have a reasonable
fear of torture by or at the acquiescence of a public official despite his presumed
pro-Russian beliefs and Pentecostal Christian faith.
PETITION DENIED.1
1
Sokol’s motion for stay of removal (Dkt. No. 6) is denied as moot. Similarly,
Sokol’s motions requesting that this Court take judicial notice of the transcript
from his underlying criminal conviction and his pending Petition for Writ of
Habeas Corpus Proceeding for Ineffective Assistance of Counsel (Dkt. Nos. 13 and
36) are also denied. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996) (“The
Act limits our review to the ‘administrative record upon which the deportation
order is based and the Attorney General’s findings of fact.’” (quoting 8 U.S.C. §
4
1105a(a)(4))). Even if the Court were to consider the transcript, contrary to
Sokol’s misrepresentation in his brief, it clearly substantiates the IJ’s ruling that
Sokol knowingly participated in and was convicted of a particularly serious
crime—armed robbery.