Shoghik Hovhannisyan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHOGHIK HOVHANNISYAN, No. 09-70410
Petitioner, Agency No. A097-356-760
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
SHOGHIK HOVHANNISYAN, No. 09-73019
Petitioner, Agency No. A097-356-760
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Submitted June 2, 2014**
Pasadena, California
Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.***
Shoghik Hovhannisyan petitions for review of decisions by the Board of
Immigration Appeals (“BIA”) rejecting her application for asylum, her application
for withholding of removal, her application for protection under the Convention
Against Torture (“CAT”), and her motion to reopen. We dismiss the petition for
lack of jurisdiction, in part, and deny the petition, in part.1
I
The BIA agreed with the immigration judge’s conclusion that
Hovhannisyan’s asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B)
because her testimony and other evidence regarding the date and circumstances
under which she entered the United States was not clear and convincing.
Hovhannisyan contends that the immigration judge violated her constitutional right
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
1
Because the parties are aware of the facts, procedural events and applicable
law underlying the dispute, we recite only such information as is necessary to
explain our decision.
2
to due process by exhibiting bias before Hovhannisyan began testifying. Although
we generally lack jurisdiction to review the BIA’s determination that an asylum
application is untimely, we do have jurisdiction over constitutional claims and
questions of law. Singh v. Holder, 649 F.3d 1161, 1164 (9th Cir. 2011) (en banc).
Here, we have jurisdiction to consider Hovhannisyan’s constitutional due process
challenge based on the immigration judge’s alleged bias because the BIA raised the
issue sua sponte in its decision. See Abebe v. Gonzalez, 432 F.3d 1037, 1041 (9th
Cir. 2005) (en banc). Nonetheless, Hovhannisyan’s due process challenge fails
because she cannot establish prejudice. See Gutierrez v. Holder, 662 F.3d 1083,
1091 (9th Cir. 2011) (noting that an alien asserting a due process violation “bears
the burden of proving the alleged violation prejudiced his or her interests”).
Even assuming that Hovhannisyan testified credibility and that the
immigration judge exhibited bias, Hovhannisyan did not establish a well-founded
fear of persecution. Hovhannisyan relies on two alleged incidents to establish past
persecution. She was not harmed during the first incident, where two unknown
men allegedly directed unspecified threats and insults at her. She allegedly
suffered a concussion and some bruises during the second incident, where she was
pushed into a wall after approaching two men in police uniforms who were beating
her brother and father. These incidents are not “so overwhelming so as to
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necessarily constitute persecution.” Gu v. Gonzalez, 454 F.3d 1014, 1020 (9th Cir.
2006). Furthermore, Hovhannisyan also failed to establish an objective fear of
future persecution based on the political climate in Armenia. Lolong v. Gonzalez,
484 F.3d 1173, 1179 (9th Cir. 2007) (en banc) (indicating an alien cannot
demonstrate a well-founded fear of persecution by relying on claims of generalized
civil strife). Because Hovhannisyan’s constitutional challenge is unavailing, we
lack jurisdiction to review the BIA’s determination that her asylum application was
untimely.
II
We have jurisdiction to consider Hovhannisyan’s challenge to the BIA’s
withholding of removal and CAT decisions under 8 U.S.C. § 1252. For the
reasons that we conclude that Hovhannisyan cannot establish prejudice, we
conclude that the BIA’s decision denying her applications for withholding of
removal and CAT protection were supported by substantial evidence. See Ren v.
Holder, 648 F.3d 1079, 1094 n.17 (9th Cir. 2011).
III
We also have jurisdiction to review the BIA’s denial of Hovhannisyan’s
motion to reopen under § 1252. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1077-78
(9th Cir. 2013). We conclude that the BIA did not abuse its discretion in denying
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the motion. Zhao v. Holder, 728 F.3d 1144, 1147 (9th Cir. 2013). Hovhannisyan
failed to demonstrate how the additional evidence of deteriorating country
conditions she submitted shows that she is eligible for relief. See Lolong, 484 F.3d
at 1179. Moreover, the BIA did not abuse its discretion in finding Hovhannisyan
ineligible for adjustment of status. Adjustment of status is only available to aliens
who were “admitted or paroled” into the United States. 8 U.S.C. § 1255(a).
Hovhannisyan, through counsel, conceded to the charge of being present in the
United States without admission. As such, the BIA’s determination that
Hovhannisyan was not eligible for adjustment of status was not “arbitrary,
irrational, or contrary to law.” Zhao, 728 F.3d at 1147.
PETITION DISMISSED, IN PART, AND DENIED, IN PART.
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