                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          May 18, 2007
                                FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                          Clerk of Court

    V A A G N G RIG O RIA N ,

               Petitioner,

      v.                                                    No. 06-9568
                                                         (No. A95-446-780)
    ALBERTO R. GONZALES, United                         (Petition for Review)
    States A ttorney General,

               Respondent.



                                OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




           Vaagn Grigorian, a native and citizen of Armenia, petitions for review of a

final order of removal. Our jurisdiction arises under 8 U.S.C. § 1252(a)(1), and

we dismiss the petition in part and deny it in part.

           The government charged that M r. Grigorian entered the United States

illegally and was removable under 8 U.S.C. § 1182(a)(6)(A)(i). He conceded that


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
he was removable but sought asylum, restriction on removal, and relief under the

United Nations Convention Against Torture (CAT). He testified that he worked

as a senior investigator for the A rmenian M inistry of Internal Affairs. In

September 2001 he was ordered to investigate the former head of the Armenian

prison system for official misconduct that could serve as pretext for the real

reason the official was removed from his position— accusing the Armenian

president of involvement in a deadly attack on the Armenian Parliament in 1999.

Finding no misconduct, he was ordered to fabricate evidence. W hen he refused,

he was fired.

      One w eek later he was called into the Armenian M inistry of D efense, where

he was left alone for four hours, then interrogated for four hours about his refusal

to follow orders. H e was beaten, sustaining a cut over his eye when he hit his

head on a table, and his interrogators “tried to threaten” him. Admin. R. at 124.

He was released but his passport was confiscated. At some point his house was

ransacked, apparently by uniformed officials, but nothing of value was taken. H e

then was followed as he drove to his mother’s house and, upon leaving there,

heard what he thought was a gunshot and fled on foot. He obtained a counterfeit

passport, left Armenia, and arrived in the United States in November 2001.

       The Immigration Judge (IJ) found M r. Grigorian’s story generally credible

but denied asylum on two grounds, (i) that the mistreatment was not severe

enough and the gunshot threat too vague to constitute persecution, and (ii) that

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M r. Grigorian’s fear of future persecution was speculative and not based on a

protected ground. The IJ also denied restriction on removal and CAT relief.

      The Board of Immigration Appeals (BIA) summarily affirmed the IJ’s

decision pursuant to 8 C.F.R. § 1003.1(e)(4); therefore, we review the IJ’s

decision. Uanreroro v. Gonzales, 443 F.3d 1197, 1203 (10th Cir. 2006). The IJ’s

“findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[T]he IJ’s

adverse asylum decision must be upheld if supported by reasonable, substantial

and probative evidence on the record as a whole.” Wiransane v. Ashcroft,

366 F.3d 889, 897 (10th Cir. 2004) (quotation omitted). Because M r. Grigorian

appears pro se, we review his filings in this court liberally but do not act as his

advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      To be eligible for a discretionary grant of asylum, M r. Grigorian must first

show that he is a refugee. See Wiransane, 366 F.3d at 893. Generally, an asylum

applicant can establish refugee status by showing that he has suffered persecution,

or has a well-founded fear of future persecution, on account of a protected

ground— race, religion, nationality, membership in a particular social group, or

political opinion. See id.; 8 U.S.C. § 1101(a)(42)(A ) (defining “refugee”). But in

both his notice of appeal to the BIA and his supporting brief, which were filed by

counsel, M r. Grigorian made only broad, conclusory assertions of error in the IJ’s

future-persecution findings that were unsupported by any discussion of the

                                          -3-
pertinent facts. Consequently, he failed to exhaust his administrative remedies as

to that issue, and we lack jurisdiction over it. See 8 U.S.C. § 1252(d)(1) (setting

forth exhaustion requirement); Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2

(10th Cir. 1991) (holding that issue exhaustion is jurisdictional and review does

not extend to points an alien could have made before the BIA but did not); cf.

8 C.F.R. § 1003.3(b) (providing that the notice of appeal must identify specific

contested facts when dispute is over factual findings). 1 Thus, M r. Grigorian may

establish refugee status only by showing that he has suffered past persecution.

      Although persecution is not defined in the immigration statutes or

regulations, we have characterized it as “the infliction of suffering or harm upon

those who differ (in race, religion, or political opinion) in a way regarded as

offensive and requires more than just restrictions or threats to life and liberty.”

Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quotations omitted).

Assuming that M r. Grigorian’s mistreatment was on account of his political

opinion, as he argues, it does not meet this standard. In Kapcia v. INS, one of the

petitioners seeking asylum, Stanislaw Saulo, alleged that on account of his

political affiliation, he was detained for a two-day period, interrogated, beaten,

assigned poor work tasks, denied bonuses, and fired. 944 F.2d 702, 704

(10th Cir. 1991). He also alleged that his parents’ home was searched and that he

1
       Even if we concluded that M r. Grigorian exhausted the future-persecution
issue, we would agree with the IJ that any future mistreatment would not be on
account of a protected ground.

                                          -4-
was conscripted into the Polish army and constantly harassed. Id. He further

claimed that a few years later, he was detained for several hours and beaten, and

eventually convicted of distributing illegal pamphlets and fined. Id. at 704-05.

W e concluded that the treatment did not amount to persecution. See id. at 708.

      The harm inflicted on M r. Grigorian was, in certain respects, similar to the

harm inflicted on M r. Saulo. But the similar treatment of M r. Grigorian was, at

most, no more severe, and it does not compel a finding of persecution. W hile it is

true that, unlike M r. Saulo, M r. Grigorian alleged he was threatened by a gunshot,

the IJ characterized M r. Grigorian’s account of that threat as vague, noting it was

“probably impossible to tell on this record” w hether the noise he identified as a

gunshot was directed at him or not because he was not shot and his car was not

hit. Admin. R. at 56. The evidence supported the IJ’s characterization, and hence

the threat was entitled to little probative value, see Vatulev v. Ashcroft, 354 F.3d

1207, 1210 (10th Cir. 2003) (explaining that vague and conclusory testimony

concerning a threat undercuts its probative value). Although the IJ did not

discuss M r. G rigorian’s statement that his interrogators “tried to threaten him,”

Admin. R. at 124, that statement also suffers from vagueness, rendering it of little

probative value.

      A s to the denial of M r. G rigorian’s request for restriction on removal, we

conclude that by challenging the IJ’s past persecution findings before the BIA and

in his petition for review, he exhausted his administrative remedies and

                                          -5-
adequately presented the issue to this court. See Niang v. Gonzales, 422 F.3d

1187, 1195-96 (10th Cir. 2005) (explaining that, under 8 C.F.R. § 1208.16(b)(1),

a rebuttable presumption of eligibility for restriction on removal may be

established by a showing of past persecution). But because he cannot meet the

standard required for eligibility for asylum, he cannot meet the higher standard

required for restriction on removal. See U anreroro, 443 F.3d at 1202. As to the

denial of his request for CAT relief, we conclude that he failed to exhaust his

administrative remedies, see Rivera-Zurita, 946 F.2d at 120 n.2, and in any event,

as with the denial of restriction on removal, his failure to meet the asylum

standard necessarily forecloses relief, see Uanreroro, 443 F.3d at 1202.

      The petition for review is DISM ISSED as to the unexhausted issues and

DENIED in all other respects.

                                                    Entered for the Court


                                                    Stephanie K. Seymour
                                                    Circuit Judge




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