Gor Kharatyan v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
APR 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOR KHARATYAN, No. 15-70629
Petitioner, Agency No. A095-179-809
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2018**
Pasadena, California
Before: ROGERS,*** BYBEE, and WATFORD, Circuit Judges.
1. The Board of Immigration Appeals (BIA) did not abuse its discretion by
denying Gor Kharatyan’s asylum claim, either as a derivative or principal
*
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 John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Page 2 of 3
applicant. See 8 U.S.C. § 1252(b)(4)(D). The immigration judge properly
considered the totality of the circumstances and weighed Kharatyan’s positive and
negative factors. See Kazlauskas v. I.N.S., 46 F.3d 902, 907 (9th Cir. 1995). In
particular, the immigration judge reasonably gave significant weight to
Kharatyan’s criminal history, which included at least eleven convictions after
removal proceedings had been initiated.
2. Substantial evidence supports the BIA’s determination that Kharatyan is
ineligible for withholding of removal and for relief under the Convention Against
Torture. See Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir. 2010).
Notwithstanding Kharatyan’s arguments to the contrary, because he applied for
these forms of relief in 2009, his application is governed by the REAL ID Act. See
id. at 1039–40. Substantial evidence supports the immigration judge’s adverse
credibility determination, which the BIA affirmed. See id. at 1044–45. In
particular, the immigration judge and the BIA properly took into account the fact
that Kharatyan’s testimony about his brother was inconsistent with the testimony
of his father and sister-in-law. The remaining record evidence, which the
immigration judge and BIA properly considered, does not on its own compel
reversal. See 8 U.S.C. §§ 1229a(c)(4)(B), 1231(b)(3)(C); Kamalthas v. I.N.S., 251
F.3d 1279, 1283–84 (9th Cir. 2001).
Page 3 of 3
3. The BIA properly affirmed the immigration judge’s evidentiary rulings
and decision to grant a continuance. “The decision to grant or deny a continuance
is in the sound discretion of the judge and will not be overturned except on a
showing of clear abuse.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th
Cir. 2008) (per curiam) (internal quotation marks omitted). The immigration judge
did not abuse his discretion in granting a continuance here. As to the evidentiary
rulings, the admitted evidence was probative and its admission was fundamentally
fair. See Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995). That evidence also
was not dispositive in the immigration judge’s decision. Finally, Kharatyan fails to
establish that he was prejudiced by the exclusion of evidence. See Ladha v. I.N.S.,
215 F.3d 889, 904 (9th Cir. 2000), overruled on other grounds by Abebe v.
Mukasey, 554 F.3d 1203 (9th Cir. 2009).
PETITION FOR REVIEW DENIED.