Khachutur Minasyan; Zhirayr Minasyan v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
KN/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHACHUTUR MINASYAN;
ZHIRAYR MINASYAN,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 04-71045
Agency Nos. A078-667-914
A072-403-795
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Khachatur Minasyan (“Khachutur”) and Zhirayr Minasyan (“Zhirayr”),
natives and citizens of Armenia, petition for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”)
FILED
FEB 24 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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decision denying their applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Our jurisdiction is
governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992), we dismiss in part and deny in part the
petition for review.
We lack jurisdiction to review the agency’s determination that Khachutur
failed to establish extraordinary circumstances excusing his untimely filed asylum
application because it is based on disputed facts. See Ramadan v. Gonzales, 479
F.3d 646, 650 (9th Cir. 2007) (per curiam). We also lack jurisdiction to review
petitioners’ challenges to the IJ’s pretermission of Zhirayr’s asylum application
because they were not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d
674, 677-78 (9th Cir. 2004).
Khachutur claims he was persecuted on account of his Pentecostal religion.
Substantial evidence supports the IJ’s finding that Khachutur failed to establish
past persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995)
(“Although a reasonable factfinder could have found this incident sufficient to
establish past persecution, we do not believe that a factfinder would be compelled
to do so.”). Substantial evidence also supports the IJ’s finding that Khachutur
failed to establish a clear probability of future persecution based on assisting his

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son in avoiding compulsory military conscription, or on any other ground. See
Hoxha v. Ashcroft, 319 F.3d 1179, 1185 (9th Cir. 2003); Zehatye v. Gonzales, 453
F.3d 1182, 1188 (9th Cir. 2006) (applicant presented no evidence of individualized
threat, and weak, if any, evidence she would be singled out for severe
disproportionate punishment for refusing to serve in the Eritrean military due to
her religious beliefs). Additionally, Zhirayr did not establish a clear probability of
future persecution on account of evading compulsory military service. See
Zehatye, 453 F.3d at 1188. We lack jurisdiction to review Khachutur’s claim
based on membership in a disfavored group, because he did not raise it before the
BIA. See Barron, 358 F.3d at 677-78. Accordingly, petitioners’ withholding of
removal claims fail.
Lastly, substantial evidence also supports the agency’s denial of CAT relief
because petitioners failed to establish it is more likely than not they will be tortured
in Armenia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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