Hagop Shahirian v. Eric Holder, Jr. , 550 F. App'x 504 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAGOP SHAHIRIAN, No. 10-70645
Petitioner, Agency No. A077-977-733
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 December 6, 2013
Pasadena, California
Before: NOONAN and WATFORD, Circuit Judges, and SMITH, Chief District
Judge.**
Petitioner Hagop Shahirian, a native and citizen of Armenia, seeks judicial
review of the Board of Immigration Appeals’ (“BIA”) denial of his application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Because Shahirian filed his application prior to May 11, 2005,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William E. Smith, Chief Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
the REAL ID Act does not govern this case. Joseph v. Holder, 600 F.3d 1235,
1240 n.3 (9th Cir. 2010). Exercising jurisdiction under 8 U.S.C. § 1252, we review
the BIA’s factual findings for substantial evidence and questions of law de novo.
Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir. 2005). We deny Shahirian’s
petition for asylum and withholding of removal, but remand his CAT claim for
further proceedings.
1. Substantial evidence supports the IJ’s and BIA’s adverse credibility
determination. Shahirian’s inability to recall the specific contents of the fliers he
was handing out—the very fliers that resulted in his alleged arrest and
persecution—goes to the heart of his political asylum claim. See Li v. Ashcroft, 378
F.3d 959, 964 (9th Cir. 2004) (holding that the IJ’s adverse credibility
determination must be upheld “[s]o long as one of the identified grounds is
supported by substantial evidence and goes to the heart of [the] claim of
persecution.” (emphasis added)). Accordingly, we need not address the IJ’s other
reasons for finding Shahirian not credible, and the asylum claim is denied.
2. Shahirian’s failure to establish asylum eligibility necessarily dooms his
withholding of removal claim. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th
Cir. 2000).
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3. Shahirian’s CAT claim, however, still survives. The IJ denied this claim
on the basis of credibility alone. Because Shahirian only addressed the credibility
finding on appeal, the BIA deemed the CAT claim waived.
Contrary to our precedent, the IJ did not evaluate Shahirian’s CAT claim
independently by paying attention to “all evidence relevant to the possibility of
future torture,” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001), including
the country conditions report, see Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004) (per curiam). Because the IJ allowed his adverse credibility finding to “wash
over the torture claim,” Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (per
curiam), we remand for a proper determination of Shahirian’s eligibility for CAT
relief, see Mihalev v. Ashcroft, 388 F.3d 722, 731 (9th Cir. 2004), and reject the
government’s argument that Shahirian waived the issue below. Shahirian’s brief to
the BIA explicitly stated that he was appealing the IJ’s denial of his application for
asylum, withholding of removal, and CAT relief. That was sufficient to preserve
the issue for appeal. See Zhang, 388 F.3d at 721.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
Each party shall bear its own costs.
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