                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HAGOP SHAHIRIAN,                                 No. 10-70645

              Petitioner,                        Agency No. A077-977-733

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 6, 2013
                              Pasadena, California

Before: NOONAN and WATFORD, Circuit Judges, and SMITH, Chief District
Judge.**
      Petitioner Hagop Shahirian, a native and citizen of Armenia, seeks judicial

review of the Board of Immigration Appeals’ (“BIA”) denial of his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Because Shahirian filed his application prior to May 11, 2005,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William E. Smith, Chief Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
the REAL ID Act does not govern this case. Joseph v. Holder, 600 F.3d 1235,

1240 n.3 (9th Cir. 2010). Exercising jurisdiction under 8 U.S.C. § 1252, we review

the BIA’s factual findings for substantial evidence and questions of law de novo.

Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir. 2005). We deny Shahirian’s

petition for asylum and withholding of removal, but remand his CAT claim for

further proceedings.

      1. Substantial evidence supports the IJ’s and BIA’s adverse credibility

determination. Shahirian’s inability to recall the specific contents of the fliers he

was handing out—the very fliers that resulted in his alleged arrest and

persecution—goes to the heart of his political asylum claim. See Li v. Ashcroft, 378

F.3d 959, 964 (9th Cir. 2004) (holding that the IJ’s adverse credibility

determination must be upheld “[s]o long as one of the identified grounds is

supported by substantial evidence and goes to the heart of [the] claim of

persecution.” (emphasis added)). Accordingly, we need not address the IJ’s other

reasons for finding Shahirian not credible, and the asylum claim is denied.

      2. Shahirian’s failure to establish asylum eligibility necessarily dooms his

withholding of removal claim. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th

Cir. 2000).




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      3. Shahirian’s CAT claim, however, still survives. The IJ denied this claim

on the basis of credibility alone. Because Shahirian only addressed the credibility

finding on appeal, the BIA deemed the CAT claim waived.

      Contrary to our precedent, the IJ did not evaluate Shahirian’s CAT claim

independently by paying attention to “all evidence relevant to the possibility of

future torture,” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001), including

the country conditions report, see Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.

2004) (per curiam). Because the IJ allowed his adverse credibility finding to “wash

over the torture claim,” Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (per

curiam), we remand for a proper determination of Shahirian’s eligibility for CAT

relief, see Mihalev v. Ashcroft, 388 F.3d 722, 731 (9th Cir. 2004), and reject the

government’s argument that Shahirian waived the issue below. Shahirian’s brief to

the BIA explicitly stated that he was appealing the IJ’s denial of his application for

asylum, withholding of removal, and CAT relief. That was sufficient to preserve

the issue for appeal. See Zhang, 388 F.3d at 721.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

      Each party shall bear its own costs.




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