Vigen Najaryan v. Eric Holder, Jr. , 593 F. App'x 707 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIGEN VOSKANOVICH NAJARYAN, No. 12-70014
Petitioner, Agency No. A077-823-840
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 19, 2014
Pasadena, California
Before: KLEINFELD and WARDLAW, Circuit Judges, and KENNELLY, District
Judge.**
Vigen Voskanovich Najaryan ("Najaryan"), a native and citizen of Armenia,
petitions for review of the Board of Immigration Appeals’ ("BIA") decision
affirming the Immigration Judge’s ("IJ") denial of his application for deferral of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
removal under the Convention Against Torture ("CAT"). Although Najaryan was
removable for having committed a crime of violence, we have jurisdiction under 8
U.S.C. § 1252 because his CAT claim was denied on the merits. See Morales v.
Gonzales, 478 F.3d 972, 980 (9th Cir. 2007). We review factual findings for
substantial evidence. See Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008).
We deny the petition.
Najaryan was removable because assault with a firearm in violation of
California Penal Code section 245(a)(2) is categorically a crime of violence,
United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009); see United
States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009), and thus an aggravated
felony as defined by 8 U.S.C. 1101(a)(43)(F).
Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), did not undermine
the holdings of Heron-Salinas and Grajeda. See United States v. Jimenez-Arzate,
— F.3d. —, 2015 WL 149802 (9th Cir. Jan. 12, 2015). Ceron relied on the same
California Supreme Court case that Heron-Salinas and Grajeda relied on, People
v. Williams, 29 P.3d 197 (Cal. 2001). The en banc court in Ceron addressed
whether assault with a deadly weapon is a crime involving moral turpitude, not
whether it is a crime of violence. See 747 F.3d at 778-79.
Finally, substantial evidence supports the BIA's decision because Najaryan
failed to establish that it is more likely than not that he will be tortured if returned
to Armenia. Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011). Najaryan’s
evidence that, while a child in Armenia, he was kicked and hit by a school teacher,
punched by a police officer, and stabbed in the arm by other school boys does not
rise to the level of the "severe pain or suffering" that constitutes torture. 8 C.F.R.
§ 1208.18(a)(1); cf., e.g., Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005).
Nor does this evidence demonstrate that he would experience similar treatment
upon his return, now approximately twenty years later. Najaryan also has not
demonstrated that he would be tortured in Armenia as a conscientious objector to
military service. As counsel acknowledged during oral argument, Najaryan has
now aged-out of required military service.
PETITION FOR REVIEW DENIED.