                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 21 2012

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



                            FOR THE NINTH CIRCUIT


MARK YEGLARYAN,                                  No. 09-70844

              Petitioner,                        Agency No. A099-070-451

  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 November 7, 2012
                            San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

       Applicant Mark Yeglaryan petitioned for review of the Board of

Immigration Appeals’ decision denying asylum, withholding of removal, and relief

under the Convention Against Torture, as well as his motion to remand and his due

process claim. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition

for review.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Yeglaryan argues that his alleged marriage to a U.S. citizen and his belief

that his wife had begun to prepare a visa petition on his behalf, constituted

extraordinary circumstances excusing his untimely asylum application. Even

assuming we have jurisdiction to consider this issue, Yeglaryan’s circumstances

were not extraordinary. Marriage to a U.S. citizen is not a circumstance related to

an untimely filing of an asylum application. See 8 C.F.R. § 208.4(a)(5). Nor would

Yeglaryan’s belief that his wife was preparing a visa application on his behalf have

prevented him from applying for asylum at the same time, see, e.g., Toj-Culpatan

v. Holder, 612 F.3d 1088, 1090–92 (9th Cir. 2010), particularly since his wife was

allegedly working on the visa application for only a portion of Yeglaryan’s filing

delay. Moreover, the length of Yeglaryan’s delay in filing was unreasonable, see 8

C.F.R. § 208.4(a)(5); he applied over a year after his visa expired, Singh v. Holder,

656 F.3d 1047, 1056 (9th Cir. 2011) (holding that a six-month delay is

presumptively reasonable).

      Similarly, we conclude that the BIA properly denied Yeglaryan’s motion to

remand because he could not have established a “prima facie case” of

extraordinary circumstances. Delgado-Ortiz v.Holder, 600 F.3d 1148, 1151 (9th

Cir. 2010). Moreover, Yeglaryan’s due process claim also fails for the reasons

explained. Although the IJ pretermitted Yeglaryan’s opportunity to present


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evidence regarding his marriage to a U.S. citizen, making the proceeding

incomplete and, therefore, unfair, see Cano-Merida v. INS, 311 F.3d 960, 965 (9th

Cir. 2002); Colmenar v. INS, 210 F.3d 967, 971–72 (9th Cir. 2000), Yeglaryan has

not shown prejudice, see Colmenar, 210 F.3d at 972, since those facts could not

have established extraordinary circumstances.

      Yeglaryan also argues that he is eligible for withholding of removal.

Although Yeglaryan was subjected to offensive treatment, the record does not

compel a finding of past persecution under our precedent. See INS v. Elias-

Zacarias, 502 U.S. 478, 483–84 (1992). While Yeglaryan was arrested and beaten

on two occasions, he was never threatened. Though violence coupled with

detention can sometimes amount to persecution, this is not always the case, see Gu

v. Gonzales, 454 F.3d 1014, 1019–21 (9th Cir. 2006); Prasad v. INS, 47 F.3d 336,

339–40 (9th Cir. 1995), and in cases where we have found persecution the alien

was either detained longer than Yeglaryan or death threats were involved. See, e.g.,

Ahmed v. Keisler, 504 F.3d 1183, 1193–94 (9th Cir. 2007); Guo v. Ashcroft, 361

F.3d 1194, 1203 (9th Cir. 2004); Mamouzian v. Ashcroft, 390 F.3d 1129, 1132,

1134 (9th Cir. 2004); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000).

Furthermore, even though Yeglaryan believes his uncle was killed because of his

political opinion, we have previously found persecution based on violence to


                                         3
family members generally where there were also threats made to the alien, such

that the violence to the family was an extension of threats to the alien and

“demonstrated that the danger threatened [to the alien] . . . was real.” Baballah v.

Ashcroft, 367 F.3d 1067, 1074–75 (9th Cir. 2004); see also Mashiri v. Ashcroft,

383 F.3d 1112, 1120–21 (9th Cir. 2004).

      Nor does the record compel a finding of a clear probability of future

persecution. Yeglaryan has not shown that the government has a continuing

interest in him such that he will be singled out individually if he returns. See

Prasad, 47 F.3d at 339–40. As the BIA held, his claim that two individuals in

civilian clothes visited his former neighbors to inquire about him on two occasions

is “too attenuated.”

      We also lack jurisdiction to consider Yeglaryan’s claim that he is entitled to

relief under the Convention Against Torture. Since he did not raise this claim in his

notice of appeal before the BIA, the BIA properly declined to consider it. See

Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).

      PETITION DENIED.




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