Davit Ghahramanyan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVIT GHAHRAMANYAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1415
Agency No.
A095-652-545
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 20, 2023
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and BENNETT,** Senior
District Judge.***
Petitioner Davit Ghahramanyan, a native and citizen of Armenia, entered the
United States in 2003 and was granted asylum in 2011. After Petitioner accumulated
several criminal convictions, the Government reopened his immigration proceedings
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard D. Bennett, United States Senior District
Judge for the District of Maryland, sitting by designation.
FILED
AUG 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and filed a motion to terminate his asylum status. Petitioner now seeks review of a
decision of the Board of Immigration Appeals (“BIA”) upholding the findings of an
Immigration Judge (“IJ”), who terminated his asylum status and denied his
application for withholding and deferral of removal. We have jurisdiction under 8
U.S.C. § 1252(b), and we deny the petition for review.
I. Termination of Asylum
Petitioner first argues that his conviction under Cal. Health & Safety Code
§ 11351 does not constitute an aggravated felony and as such is not a valid predicate
to terminate his asylum status. See Diego v. Sessions, 857 F.3d 1005, 1008 (9th Cir.
2017); 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i). Whether a crime constitutes an
aggravated felony is a legal question that we review de novo. See United States v.
Alvarez, 60 F.4th 554, 557 (9th Cir. 2023).
We apply the modified categorical ap proach to determine whether a state
conviction under Cal. Health & Safety Code § 11351 constitutes an aggravated
felony drug trafficking crime. Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir.
2018). Under this framework, the court must examine “the terms of the charging
document, the terms of the plea agreement . . . or to some comparable judicial
record” to assess whether the defendant was convicted of trafficking a substance
controlled under federal law. Id. According to Petitioner’s criminal record, he was
convicted of Count 2 of the criminal complaint. That count charged him with

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“unlawfully possess[ing] for sale and purchase for sale a controlled substance, to
wit, cocaine,” in violation of § 11351. Accordingly, Petitioner’s conviction
constitutes an aggravated felony, and his asylum status was properly terminated.
II. Particularly Serious Crime
Petitioner next argues that the BIA abused its discretion by affirming the IJ’s
finding that his § 11351 conviction constitutes a particularly serious crime barring
withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA has substantial
discretion to determine whether a given offense is particularly serious, and we lack
jurisdiction to “reweigh the evidence and reach our own determination about the
crime’s seriousness.” Hernandez v. Garland, 52 F.4th 757, 765 (9th Cir. 2022)
(quoting Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)).
However, we review the BIA’s analysis for abuse of discretion and may reverse if
the BIA’s decision was arbitrary, irrational, or contrary to law, or if the agency relied
on inappropriate factors or improper evidence to reach its conclusion. Park v.
Garland, 72 F.4th 965, 2023 WL 4243695, at *7 (9th Cir. 2023).
As Petitioner committed a drug trafficking crime, he faces an “extraordinarily
strong presumption” that his offense constitutes a particularly serious crime. Miguel-
Miguel v. Gonzales, 500 F.3d 941, 947 (9th Cir. 2007). To rebut this presumption,
Petitioner must establish, at minimum, the six factors set forth in Matter of Y-L-, 23
I. & N. Dec. 270, 276–77 (BIA 2002), including, as relevant, “merely peripheral

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involvement” in the offense. Miguel-Miguel, 500 F.3d at 946–47. The IJ found, and
the BIA affirmed, that Petitioner failed to establish this factor and could not rebut
the Matter of Y-L- presumption. While Petitioner contests the substance of that
finding, we lack jurisdiction to reweigh the evidence and reach a contrary
conclusion. Hernandez, 52 F.4th at 765. And while Petitioner argues that the mental
impairment caused by his addiction was not considered, he offered no testimony
“directly attributing” the instant offense to his addiction. See Benedicto v. Garland,
12 F.4th 1049, 1062 (9th Cir. 2021). Accordingly, as the BIA applied the correct
factors and did not rely on improper evidence, the agency did not abuse its discretion
by concluding that Petitioner’s § 11351 conviction constitutes a particularly serious
crime.
III. Convention Against Torture
Third, Petitioner challenges the BIA’s denial of deferral of removal under the
Convention Against Torture (“CAT”). The CAT provides mandatory relief for any
immigrant who can show that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” Hamoui v. Ashcroft, 389
F.3d 821, 826 (9th Cir. 2004) (citations omitted). The immigrant must demonstrate
that he faces a particularized risk—that “he, in particular,” would more likely than
not be tortured upon return. Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706 (9th
Cir. 2022). The denial of CAT relief is reviewed for substantial evidence. Dawson

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v. Garland, 998 F.3d 876, 882 (9th Cir. 2021). Here, while Petitioner offers evidence
indicating that torture occurs generally in Armenia, he relies primarily on inferences
to argue that he would personally be targeted for torture. Accordingly, substantial
evidence supports the BIA’s denial of CAT relief.
IV. Due Process
Petitioner also argues that he was denied due process during his merits hearing
before the IJ. A due process violation in removal proceedings occurs where “(1) the
proceeding was so fundamentally unfair that the [immigrant] was prevented from
reasonably presenting his case, and (2) the [immigrant] demonstrates prejudice,
which means that the outcome of the proceeding may have been affected by the
alleged violation.” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (quoting
Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)). Here, Petitioner raises two
due process claims but fails to establish prejudice under either theory.
First, Petitioner argues that he was not afforded an opportunity to contest the
termination of his asylum status during his hearing before the IJ. However, as the
record clearly demonstrates that Petitioner was convicted of trafficking cocaine—an
aggravated felony under the modified categorical approach—that is a sufficient basis
to terminate Petitioner’s asylum status, regardless of any other testimony that he may
have adduced. See Pagayon v. Holder, 675 F.3d 1182, 1192 (9th Cir. 2011) (holding

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that Petitioner failed to establish prejudice where there was “no connection between
the additional evidence and the outcome of the proceeding”).
Second, Petitioner claims that the IJ failed to inform him of the dispositive
Matter of Y-L- factors and failed to adequately develop the record on this issue. We
have previously held that an IJ must “explain to an [immigrant] what he must prove
to establish the basis for the relief he seeks,” and must “fully develop the record” by
“scrupulously and conscientiously prob[ing] into . . . all the relevant facts.”
Zamorano v. Garland, 2 F.4th 1213, 1225–26 (9th Cir. 2021) (citations omitted).
Here, Petitioner was not “prevented from reasonably presenting his case” where the
IJ asked direct questions about Petitioner’s § 11351 offense and gave Petitioner an
open-ended opportunity to provide any additional information he thought necessary
that was not drawn out by the IJ’s questions. See Hussain v. Rosen, 985 F.3d 634,
642 (9th Cir. 2021). But even assuming the IJ failed to apprise the Petitioner of the
Matter of Y-L- factors or to adequately develop the record on this issue, Petitioner
was not prejudiced by these deficiencies. The BIA cited the IJ’s findings with
approval, with minimal independent analysis. We may therefore presume that the
BIA “gave significant weight to the IJ’s findings” and “look to the IJ’s . . . decision
as a guide to what lay behind the BIA’s conclusion.” Park, 2023 WL 4243695, at *6
(alteration in original) (citation omitted). It is clear from the IJ’s decision that the IJ
found that Petitioner had not testified credibly regarding his § 11351 offense. See

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Parra v. Sessions, 704 Fed. Appx. 713, 714 (9th Cir. 2017) (quoting Matter of Y-L-
and noting that post-conviction claims of innocence are insufficient to rebut the
presumption that drug trafficking offenses are particularly serious). Accordingly,
Petitioner was not prejudiced by any deficiencies in the IJ’s questioning.
PETITION DENIED.

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