Komitas Grigoryan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KOMITAS GRIGORYAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1570
Agency No.
A071-212-139
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 8, 2024**
Pasadena, California
Before: SILER***, GOULD, and BEA, Circuit Judges.
Petitioner Komitas Grigoryan (“Grigoryan”), an ethnic Armenian and native
and citizen of Russia, petitions for review of the Board of Immigration Appeals’
* 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 Eugene E. Siler, United States Circuit Judge for the
Court of Appeals, 6th Circuit, sitting by designation.
FILED
APR 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(BIA) affirmance of the Immigration Judge’s (IJ) denial of his application for
withholding of removal and relief under the Conventional Against Torture (CAT).
The parties are familiar with the facts, so we discuss them here only where necessary.
We deny Grigoryan’s petition.
1. Although Grigoryan styles all his withholding-of-removal arguments as
legal challenges, three are factual and two are legal. First, Grigoryan argues that he
will be singled out for persecution if removed to Russia because he does not speak
Russian and will attract attention. According to Grigoryan, the IJ improperly
overlooked this argument and accompanying expert testimony. However, the IJ
expressly considered Grigoryan’s argument that he is an acculturated American and
discussed the expert testimony. Therefore, Grigoryan does not challenge the IJ’s
failure to consider this evidence—he instead challenges the IJ’s failure to accord
evidentiary weight to that evidence. This is a factual challenge.
Second, Grigoryan contends that the IJ mistakenly concluded that his brother
was not a credible witness. “An adverse credibility determination is a factual
finding,” so this, again, is a factual challenge. Ruiz-Colmenares v. Garland, 25 F.4th
742, 748 (9th Cir. 2022).
Third, Grigoryan argues that he demonstrated enough individualized risk of
persecution to establish eligibility for withholding of removal under a disfavored
group theory. See Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (holding

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that an applicant for withholding of removal must demonstrate that it is “more likely
than not” that they will be persecuted). The question of whether a petitioner met
this burden is another factual challenge.
We lack jurisdiction to review a petitioner’s factual challenges to their
removal order when they are removable due to an aggravated felony conviction. 8
U.S.C. §§ 1252(a)(2)(C)–1227(a)(2)(A)(iii); Nasrallah v. Barr, 590 U.S. 573, 587
(2020). Grigoryan is removable for his commission of an aggravated felony.
Therefore, we do not have jurisdiction to consider his three factual challenges to the
agency’s denial of withholding of removal.
2. We may, however, consider Grigoryan’s two remaining legal challenges. 8
U.S.C. § 1252(a)(2)(D); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 227 (2020). We
review them de novo. Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n.1 (9th Cir.
2007).
Grigoryan argues that the IJ applied an “incorrect standard” in determining
whether he demonstrated a sufficient nexus between his Armenian ethnicity and the
alleged harm. Yet the agency made no nexus finding; rather, the IJ concluded that
Grigoryan had not demonstrated a clear probability of persecution and denied relief
on that basis. The agency did not err on this basis.
Grigoryan next argues that, because he has demonstrated that he is entitled to
withholding of removal on the merits, we should remand the case to the IJ for a

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determination of whether any of Grigoryan’s prior convictions constitute a
“particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). However, as
explained above, we do not have jurisdiction over Grigoryan’s claim on its
merits. The agency also did not err on this basis.
3. Finally, Grigoryan challenges the agency’s denial of his claim for CAT
relief. Because the BIA reviewed the IJ’s decision for clear error and agreed with
the IJ’s reasoning, we review both decisions. See Garcia-Martinez v. Sessions, 886
F.3d 1291, 1293 (9th Cir. 2018). We review legal conclusions de novo, Hernandez-
Gil, 476 F.3d at 804 n.1, and factual findings for substantial evidence. Plancarte
Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).
Grigoryan contends that the Russian government is willfully blind to
torture. Grigoryan also argues that he will be targeted and tortured if returned to
Russia because he will be suspected to be a spy. Here, Grigoryan posited two distinct
theories for why he would be tortured: his Armenian ethnicity and his American
background. “In assessing a CAT claim from an applicant who has posited multiple
theories for why he might be tortured, the relevant inquiry is whether the
total probability that the applicant will be tortured—considering all potential sources
of and reasons for torture—exceeds 50 percent.” Velasquez-Samayoa v. Garland,
49 F.4th 1149, 1154 (9th Cir. 2022). The agency stated that it considered the entirety
of the evidence in the record and assessed Grigoryan’s aggregate risk of torture from

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all sources to conclude that, on balance, Grigoryan did not prove that he would
probably face torture.
Nor did the agency fail to consider “evidence of gross, flagrant or mass
violations of human rights within the country of removal” as part of its CAT
analysis. 8 C.F.R. § 1208.16(c)(3)(iii). The IJ considered country conditions
evidence in its analysis of Grigoryan’s withholding of removal claim, and then
concluded that those reports did not demonstrate that he faced an individualized risk
of persecution. The IJ incorporated that finding into his CAT analysis, concluding
that because Grigoryan did not face a clear probability of future persecution based
on his Armenian ethnicity, he did not face a clear probability of future torture based
on his ethnicity. So, although the IJ did not directly reference the country conditions
reports in his CAT analysis, he did base his CAT analysis on his withholding of
removal findings—which, in turn, relied on the country conditions reports. The BIA
then agreed with the IJ’s reasoning and confirmed that it, too, based its CAT findings
on the entirety of the evidence of record. Grigoryan therefore cannot show that the
BIA failed to consider the country conditions reports.
Grigoryan also argues that the IJ misapplied the standard for CAT relief by
requiring a nexus to a protected ground. See Cole v. Holder, 659 F.3d 762, 770 (9th
Cir. 2011) (“[A]n application for CAT relief need not show that [the applicant] will
be tortured ‘on account of’ any particular ground.”). But the IJ did not impose a

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nexus requirement. Rather, the IJ concluded that Grigoryan “has not carried his
burden of proof in demonstrating that it is more likely that [sic] not that he will be
tortured in Russia.” The BIA likewise concluded that the IJ “correctly considered a
fear of torture in Russia for any reason.” Therefore, neither the IJ nor the BIA
applied a nexus requirement to Grigoryan’s CAT petition.
PETITION DENIED.

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