                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 22 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



RUBEN DAVTYAN, a.k.a. Ruben                       No. 07-72331
Yedigaryan,
                                                  Agency No. A098-741-184
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Ruben Davtyan, native and citizen of Armenia, petitions for review of a

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

          *
             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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992), and we

review de novo questions of law and due process claims, Vasquez-Zavala v.

Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We grant in part and deny in part

the petition for review, and we remand.

         The BIA determined in the first instance that Davtyan could relocate within

Armenia to avoid persecution. In light of our intervening decision in Brezilien v.

Holder, 569 F.3d 403, 414 (9th Cir. 2009) (remanding because the BIA has not

made clear whether internal relocation is a factual or a legal issue), we grant the

petition for review as to Davtyan’s asylum and withholding of removal claims and

remand for further proceedings consistent with this disposition. See INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see also 8 C.F.R.

§ 1003.1(d)(3)(iv) (“Except for taking administrative notice . . . the Board will not

engage in factfinding in the course of deciding appeals.”).

         Substantial evidence supports the BIA’s denial of CAT relief because

Davtyan failed to establish it is more likely than not that he will be tortured if

returned to Armenia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).




                                            2                                        07-72331
      The IJ acted within his discretion in granting the government’s motion for a

continuance and Davtyan was not prejudiced by any bias the IJ may have had. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2006).

      Because our review is limited to the administrative record, we decline to

consider Davtyan’s Supplemental Background Exhibits. See Fisher v. INS, 79

F.3d 955, 963 (9th Cir. 1996) (en banc).

      Davtyan’s request for judicial notice is denied.

      The government’s motion to strike Davtyan’s brief is denied.

      Each party shall bear its own costs.

      PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.




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