Unreported / Non-Citable
Background
Petitioners Artashes Khachaturyan, his wife, and their children sought review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The lead petitioner is a native of Armenia and citizen of Russia who moved to Russia in 2003, obtained citizenship in 2014, and renounced Armenian citizenship in 2017. He alleged assaults by Russian nationalists and police due to his Armenian ethnicity in late 2019, and subsequent arrest and beating by Armenian police during political protests from November 2020 to January 2021. Over the years, the family traveled repeatedly between Russia and Armenia, spending several months per year in each country. In August 2021, they traveled from Russia to Mexico and entered the United States.
The IJ and BIA denied relief, finding the petitioners firmly resettled in Russia and concluding that their voluntary travel patterns undermined their persecution claims. The BIA also deemed the CAT claim waived for failure to meaningfully challenge the IJ's ruling. The Ninth Circuit exercised jurisdiction under 8 U.S.C. § 1252 and reviewed the BIA's factual findings for substantial evidence, which requires upholding the decision unless any reasonable adjudicator would be compelled to conclude otherwise.
The Court’s Holding
The Ninth Circuit denied the petition for review. The court held that substantial evidence supported the denial of asylum and withholding of removal because the petitioners' extensive history of voluntary 'back and forth' travel between Armenia and Russia over several years, and their ability to cross borders without interference, meant the record did not compel a conclusion contrary to the agency's finding that they did not suffer past persecution or possess an objectively reasonable fear of future persecution. The court cited precedent establishing that an alien's history of willingly returning to a home country militates against findings of past persecution or well-founded fear. The court declined to address the firm resettlement bar because it would not resolve the petition, as that bar does not apply to withholding of removal or CAT protection. The CAT claim was not considered because petitioners failed to raise it on appeal, resulting in waiver.
The panel unanimously concluded the case was suitable for decision without oral argument. The court denied the petitioners' Motion to Stay Removal. The disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Key Takeaways
- Voluntary and repeated travel between countries of alleged persecution strongly undermines claims of past persecution and well-founded fear of future persecution.
- The substantial evidence standard requires the record to compel a contrary conclusion to overturn the BIA's factual findings.
- Failure to raise a CAT claim on appeal results in waiver of that claim.
- The firm resettlement bar applies only to asylum, not to withholding of removal or CAT protection.
- A petitioner's ability to cross national borders without government interference indicates a lack of objectively reasonable fear.
Why It Matters
This decision reinforces the Ninth Circuit's longstanding precedent that voluntary return travel to a country of alleged persecution is a powerful factor weighing against credibility and eligibility for asylum and withholding of removal. By emphasizing the petitioners' unimpeded border crossings and extended stays in both Armenia and Russia over many years, the court applied a practical, totality-of-the-circumstances approach to the well-founded fear analysis. The ruling also serves as a procedural reminder that CAT claims must be specifically briefed on appeal to avoid waiver, and that courts may decline to reach alternative grounds for denial (such as firm resettlement) when the primary holding is dispositive.