Grigorian v. Gonzales , 231 F. App'x 828 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
V A A G N G RIG O RIA N ,
Petitioner,
v. No. 06-9568
(No. A95-446-780)
ALBERTO R. GONZALES, United (Petition for Review)
States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Vaagn Grigorian, a native and citizen of Armenia, petitions for review of a
final order of removal. Our jurisdiction arises under 8 U.S.C. § 1252(a)(1), and
we dismiss the petition in part and deny it in part.
The government charged that M r. Grigorian entered the United States
illegally and was removable under 8 U.S.C. § 1182(a)(6)(A)(i). He conceded that
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
he was removable but sought asylum, restriction on removal, and relief under the
United Nations Convention Against Torture (CAT). He testified that he worked
as a senior investigator for the A rmenian M inistry of Internal Affairs. In
September 2001 he was ordered to investigate the former head of the Armenian
prison system for official misconduct that could serve as pretext for the real
reason the official was removed from his position— accusing the Armenian
president of involvement in a deadly attack on the Armenian Parliament in 1999.
Finding no misconduct, he was ordered to fabricate evidence. W hen he refused,
he was fired.
One w eek later he was called into the Armenian M inistry of D efense, where
he was left alone for four hours, then interrogated for four hours about his refusal
to follow orders. H e was beaten, sustaining a cut over his eye when he hit his
head on a table, and his interrogators “tried to threaten” him. Admin. R. at 124.
He was released but his passport was confiscated. At some point his house was
ransacked, apparently by uniformed officials, but nothing of value was taken. H e
then was followed as he drove to his mother’s house and, upon leaving there,
heard what he thought was a gunshot and fled on foot. He obtained a counterfeit
passport, left Armenia, and arrived in the United States in November 2001.
The Immigration Judge (IJ) found M r. Grigorian’s story generally credible
but denied asylum on two grounds, (i) that the mistreatment was not severe
enough and the gunshot threat too vague to constitute persecution, and (ii) that
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M r. Grigorian’s fear of future persecution was speculative and not based on a
protected ground. The IJ also denied restriction on removal and CAT relief.
The Board of Immigration Appeals (BIA) summarily affirmed the IJ’s
decision pursuant to 8 C.F.R. § 1003.1(e)(4); therefore, we review the IJ’s
decision. Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). The IJ’s
“findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[T]he IJ’s
adverse asylum decision must be upheld if supported by reasonable, substantial
and probative evidence on the record as a whole.” Wiransane v. Ashcroft,
366 F.3d 889, 897 (10th Cir. 2004) (quotation omitted). Because M r. Grigorian
appears pro se, we review his filings in this court liberally but do not act as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
To be eligible for a discretionary grant of asylum, M r. Grigorian must first
show that he is a refugee. See Wiransane, 366 F.3d at 893. Generally, an asylum
applicant can establish refugee status by showing that he has suffered persecution,
or has a well-founded fear of future persecution, on account of a protected
ground— race, religion, nationality, membership in a particular social group, or
political opinion. See id.; 8 U.S.C. § 1101(a)(42)(A ) (defining “refugee”). But in
both his notice of appeal to the BIA and his supporting brief, which were filed by
counsel, M r. Grigorian made only broad, conclusory assertions of error in the IJ’s
future-persecution findings that were unsupported by any discussion of the
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pertinent facts. Consequently, he failed to exhaust his administrative remedies as
to that issue, and we lack jurisdiction over it. See 8 U.S.C. § 1252(d)(1) (setting
forth exhaustion requirement); Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2
(10th Cir. 1991) (holding that issue exhaustion is jurisdictional and review does
not extend to points an alien could have made before the BIA but did not); cf.
8 C.F.R. § 1003.3(b) (providing that the notice of appeal must identify specific
contested facts when dispute is over factual findings). 1 Thus, M r. Grigorian may
establish refugee status only by showing that he has suffered past persecution.
Although persecution is not defined in the immigration statutes or
regulations, we have characterized it as “the infliction of suffering or harm upon
those who differ (in race, religion, or political opinion) in a way regarded as
offensive and requires more than just restrictions or threats to life and liberty.”
Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quotations omitted).
Assuming that M r. Grigorian’s mistreatment was on account of his political
opinion, as he argues, it does not meet this standard. In Kapcia v. INS, one of the
petitioners seeking asylum, Stanislaw Saulo, alleged that on account of his
political affiliation, he was detained for a two-day period, interrogated, beaten,
assigned poor work tasks, denied bonuses, and fired. 944 F.2d 702, 704
(10th Cir. 1991). He also alleged that his parents’ home was searched and that he
1
Even if we concluded that M r. Grigorian exhausted the future-persecution
issue, we would agree with the IJ that any future mistreatment would not be on
account of a protected ground.
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was conscripted into the Polish army and constantly harassed. Id. He further
claimed that a few years later, he was detained for several hours and beaten, and
eventually convicted of distributing illegal pamphlets and fined. Id. at 704-05.
W e concluded that the treatment did not amount to persecution. See id. at 708.
The harm inflicted on M r. Grigorian was, in certain respects, similar to the
harm inflicted on M r. Saulo. But the similar treatment of M r. Grigorian was, at
most, no more severe, and it does not compel a finding of persecution. W hile it is
true that, unlike M r. Saulo, M r. Grigorian alleged he was threatened by a gunshot,
the IJ characterized M r. Grigorian’s account of that threat as vague, noting it was
“probably impossible to tell on this record” w hether the noise he identified as a
gunshot was directed at him or not because he was not shot and his car was not
hit. Admin. R. at 56. The evidence supported the IJ’s characterization, and hence
the threat was entitled to little probative value, see Vatulev v. Ashcroft, 354 F.3d
1207, 1210 (10th Cir. 2003) (explaining that vague and conclusory testimony
concerning a threat undercuts its probative value). Although the IJ did not
discuss M r. G rigorian’s statement that his interrogators “tried to threaten him,”
Admin. R. at 124, that statement also suffers from vagueness, rendering it of little
probative value.
A s to the denial of M r. G rigorian’s request for restriction on removal, we
conclude that by challenging the IJ’s past persecution findings before the BIA and
in his petition for review, he exhausted his administrative remedies and
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adequately presented the issue to this court. See Niang v. Gonzales, 422 F.3d
1187, 1195-96 (10th Cir. 2005) (explaining that, under 8 C.F.R. § 1208.16(b)(1),
a rebuttable presumption of eligibility for restriction on removal may be
established by a showing of past persecution). But because he cannot meet the
standard required for eligibility for asylum, he cannot meet the higher standard
required for restriction on removal. See U anreroro, 443 F.3d at 1202. As to the
denial of his request for CAT relief, we conclude that he failed to exhaust his
administrative remedies, see Rivera-Zurita, 946 F.2d at 120 n.2, and in any event,
as with the denial of restriction on removal, his failure to meet the asylum
standard necessarily forecloses relief, see Uanreroro, 443 F.3d at 1202.
The petition for review is DISM ISSED as to the unexhausted issues and
DENIED in all other respects.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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