Nelli Tamazyan v. Jeff B. Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELLI TAMAZYAN, No. 13-74290
Petitioner, Agency No. A099-968-426
v.
MEMORANDUM *
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2017**
Pasadena, California
Before: SCHROEDER, DAVIS,*** and MURGUIA, Circuit Judges.
Nelli Tamazyan petitions for review of a decision from the Board of
Immigration Appeals (BIA), denying her applications for asylum, withholding of
removal, and relief under the Convention against Torture (CAT).
*
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 Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
Tamazyan’s appeal is governed by the standards of the REAL ID Act.
When, as here, “the BIA adopts the decision of the IJ, we review the IJ’s decision
as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.
2005) (quoting Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004)). “We
review the BIA’s denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (internal quotation marks omitted).
We will not reverse a finding “with respect to the availability of corroborating
evidence” unless we are “compelled to conclude that such corroborating evidence
is unavailable.” 8 U.S.C. § 1252(b)(4); see Shrestha v. Holder, 590 F.3d 1034,
1047–48 (9th Cir. 2010). Under these standards, we affirm the BIA’s decision and
deny Tamazyan’s petition for review.
1. The asylum-seeker bears the burden of proof to show that they are a refugee
eligible for asylum. See Singh v. Holder, 649 F.3d 1161, 1166 (9th Cir. 2011) (en
banc). An IJ may require that an applicant provide corroborating evidence to meet
their burden of proof. 8 U.S.C. § 1158(b)(1)(B)(ii). An application for asylum may
be denied on the ground that the applicant “failed to provide sufficient
corroborating evidence when requested to do so, and therefore failed to meet
[their] burden of proof.” Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011);
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accord Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009) (stating that an
asylum application “can be turned down for failing to provide corroboration where
[s]he does have it or could reasonably obtain it.”). Tamazyan testified to a history
of persecution in Armenia. The immigration judge directed Tamazyan to provide
documents to corroborate her testimony, including courts records Tamazyan
specifically referenced and evidence to show her employment at a university. The
immigration judge repeatedly notified Tamazyan of the importance of this
evidence and gave her adequate opportunity to provide it. Tamazyan, for the most
part, did not provide this corroborating evidence. Further, Tamazyan did not
appear to make diligent efforts to obtain corroborating evidence or test the limits of
her capacity to obtain corroborating evidence. Tamazyan failed to explain
adequately her failure to produce evidence, see Ren, 648 F.3d at 1081, 1094, and
substantial evidence supports that corroborating evidence was reasonably
obtainable. Because the IJ had substantial evidence to find the evidence reasonably
obtainable, and Tamazyan failed to provide the evidence, there was legal authority
to dismiss Tamazyan’s petition for asylum. Aden, 589 F.3d at 1045.
2. A petitioner seeking withholding of removal “must show a ‘clear
probability’ of the threat to life or freedom if deported to his or her country of
nationality”—a standard “more stringent than the . . . standard for asylum.”
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Because Tamazyan
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“failed to meet h[er] burden of proof for asylum, [s]he necessarily failed to meet
the higher burden of proof for withholding of removal.” Ren, 648 F.3d at 1094
n.17.
3. To be eligible for relief under the CAT, Tamazyan must prove “it is more
likely than not that . . . she would be tortured if removed” to Armenia. 8 C.F.R. §
1208.16(c)(2); see Konou v. Holder, 750 F.3d 1120, 1124–25 (9th Cir. 2014).
Tamazyan’s testimony is taken as true in the absence of an adverse credibility
finding. See Konou, 750 F.3d at 1124. Tamazyan cannot show that evidence in the
record compels a conclusion that she will more likely than not be tortured. For the
violence she experienced personally, Tamazyan appears not to be able to show
“repeated, lengthy and severe harassment,” see Gu v. Gonzales, 454 F.3d 1014,
1020 (9th Cir. 2006), or violence inflicting “severe pain and suffering” within the
CAT’s definition of torture. 8 C.F.R. § 1208.18(a)(1)–(2). Though her testimony
regarding her uncle’s killing showed past torture, see Bromfield v. Mukasey, 543
F.3d 1071, 1079 (9th Cir. 2008), Tamazyan did not argue to the BIA that the
killing of her uncle entitled her to relief under the CAT. Tamazyan’s failure to
raise the argument about her uncle before the BIA deprives the panel of
jurisdiction to review her argument on appeal. See Ramos v. I.N.S., 246 F.3d 1264,
1267 (9th Cir. 2001).
PETITION DENIED.
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