Ivan Zhurbin; 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN ZHURBIN; et al.,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-74241
Agency Nos. A096-064-448
A096-354-993
A096-354-994
MEMORANDUM*
EVGENIA BORODIKHNIA and
TIGRAN HAYRAPETYAN,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-73138
Agency Nos. A096-354-993
A096-354-994
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2012
Pasadena, California
FILED
DEC 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Before: BERZON, IKUTA, and NGUYEN, Circuit Judges.
Ivan Zhurbin and Evgenia Borodikhnia petition for review of the BIA’s
denial of their applications for asylum, withholding of removal, and relief under
the Convention Against Torture. Tigran Hayrapetyan petitions for review of the
BIA’s denial of his motion to reopen proceedings for the purpose of filing an
independent asylum application based on changed country conditions. We deny
the petitions.
Petitioners failed to administratively exhaust their inconsistent treatment
argument, because they did not raise this argument in their briefs to the BIA.
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). Accordingly,
we lack jurisdiction over this issue. Id.
Substantial evidence supports the BIA’s conclusion that the police’s
detention of Borodikhnia and detention and brief beating of Zhurbin did not rise to
the level of persecution. See Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995).
Substantial evidence also supports the BIA’s conclusion that the government was
not unwilling or unable to control the skinheads in Omsk and Novosibirsk. Among
other evidence, the record shows that police prevented disruption of the Student
Democratic Union’s scheduled demonstrations and responded to calls for
assistance after skinheads attacked mosques guarded by Student Democratic Union

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members. Cf. Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005). The
BIA’s conclusion that Zhurbin and Borodikhnia do not have a well founded fear of
future persecution is supported by substantial evidence in the record, including the
State Department’s country conditions report. As a result, the BIA did not err in
denying Zhurbin’s and Borodikhnia’s asylum applications. Because Zhurbin and
Borodikhnia failed to qualify for asylum, they necessarily failed to satisfy the more
stringent standard for withholding of removal. Alvarez-Santos v. I.N.S., 332 F.3d
1245, 1255 (9th Cir. 2003).
The BIA did not err in rejecting Zhurbin’s and Borodikhnia’s claims for
relief under the Convention Against Torture, because substantial evidence
supported its conclusion that neither Zhurbin nor Borodikhnia are more likely than
not to be tortured if returned to Russia. See Al-Saher v. INS, 268 F.3d 1143, 1147
(9th Cir. 2001).
Finally, the BIA did not abuse its discretion in concluding that the changed
conditions in Armenia were not material and did not warrant reopening the
proceedings to permit Hayrapetyan to file an independent asylum application. See
8 U.S.C. § 1229a(c)(7)(C)(ii) (2012). Among other things, the record shows that
military men visited Hayrapetyan’s family’s home both before and after Sargsyan
was elevated from head of national security to president.

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PETITIONS FOR REVIEW DENIED.

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