Sultanyan v. Holder , 410 F. App'x 40 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMAN SULTANYAN, No. 06-73750
Petitioner, Agency No. A77-104-520
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 1, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District
Judge.**
Petitioner Arman Sultanyan (Sultanyan) challenges the Board of Immigration
Appeals (BIA) decision affirming the Immigration Judge’s (IJ) decision that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Sultanyan is inadmissible on the charge of alien smuggling and denial of Sultanyan’s
application for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT).
The BIA did not err by failing explicitly to address Sultanyan’s arguments
challenging the IJ’s alien smuggling determination. “Where the BIA expresses no
disagreement with any part of the IJ’s decision, but instead cites In re Burbano, as it
did here, the BIA adopts the IJ’s decision in its entirety.” Figueroa v. Mukasey, 543
F.3d 487, 491 (9th Cir. 2008) (citing Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th
Cir. 2005) (en banc)). “A Burbano affirmance signifies that the BIA has conducted
an independent review of the record and has determined that its conclusions are the
same as those articulated by the IJ.” Figueroa, 543 F.3d at 491. “In such a case, we
review the IJ’s decision as if it were the decision of the BIA.” Id.Substantial evidence supports the IJ’s adverse credibility determination in
finding Sultanyan inadmissible on the alien smuggling charge. The IJ’s determination
must be upheld if supported by reasonable, substantial, and probative evidence in the
record. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Sultanyan has not
shown that the evidence compels a different determination from that rendered by the
IJ with respect to each ground cited in support of the adverse credibility
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determination. See Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th Cir. 2005);
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
Substantial evidence supports the IJ’s adverse credibility determination in
denying Sultanyan’s asylum application. Sultanyan has not shown that the evidence
compels a different determination from that rendered by the IJ with respect to each
ground cited in support of the adverse credibility determination. See Zheng, 397 F.3d
at 1143; Molina-Estrada, 293 F.3d at 1093.
The IJ did not err in denying Sultanyan’s application for withholding of
removal. Because the IJ found Sultanyan ineligible for asylum, Sultanyan necessarily
failed to establish his eligibility for withholding of removal. See Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003) (holding that an applicant who fails to satisfy the
lower standard of proof for asylum necessarily fails to satisfy the more stringent
standard for withholding of removal).
The BIA did not err in refusing to consider Sultanyan’s newly proffered
evidence on appeal. Generally, “the BIA is not obligated to accept all materials
tendered by a party after an immigration hearing.” See Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 381 (9th Cir. 2003). Moreover, in the instant case, the photographs and
statements offered by Sultanyan could have been obtained and presented at his
original hearing before the IJ. This was not new evidence. This proffer of evidence
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to the BIA is not appropriate unless it appears to the Board that such evidence “is
material and was not available and could not have been discovered or presented at the
former hearing . . .” 8 C.F.R. § 1003.2(c)(1).
AFFIRMED.
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