                                                                           FILED
                              NOT FOR PUBLICATION                           FEB 24 2010

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




                               FOR THE NINTH CIRCUIT



 KHACHUTUR MINASYAN;                               No. 04-71045
 ZHIRAYR MINASYAN,
                                                   Agency Nos. A078-667-914
               Petitioners,                                    A072-403-795

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

               Respondent.



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

                              Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Khachatur Minasyan (“Khachutur”) and Zhirayr Minasyan (“Zhirayr”),

natives and citizens of Armenia, petition for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”)

          *
             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).

KN/Research
decision denying their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Our jurisdiction is

governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992), we dismiss in part and deny in part the

petition for review.

       We lack jurisdiction to review the agency’s determination that Khachutur

failed to establish extraordinary circumstances excusing his untimely filed asylum

application because it is based on disputed facts. See Ramadan v. Gonzales, 479

F.3d 646, 650 (9th Cir. 2007) (per curiam). We also lack jurisdiction to review

petitioners’ challenges to the IJ’s pretermission of Zhirayr’s asylum application

because they were not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d

674, 677-78 (9th Cir. 2004).

       Khachutur claims he was persecuted on account of his Pentecostal religion.

Substantial evidence supports the IJ’s finding that Khachutur failed to establish

past persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995)

(“Although a reasonable factfinder could have found this incident sufficient to

establish past persecution, we do not believe that a factfinder would be compelled

to do so.”). Substantial evidence also supports the IJ’s finding that Khachutur

failed to establish a clear probability of future persecution based on assisting his


KN/Research                                2                                     04-71045
son in avoiding compulsory military conscription, or on any other ground. See

Hoxha v. Ashcroft, 319 F.3d 1179, 1185 (9th Cir. 2003); Zehatye v. Gonzales, 453

F.3d 1182, 1188 (9th Cir. 2006) (applicant presented no evidence of individualized

threat, and weak, if any, evidence she would be singled out for severe

disproportionate punishment for refusing to serve in the Eritrean military due to

her religious beliefs). Additionally, Zhirayr did not establish a clear probability of

future persecution on account of evading compulsory military service. See

Zehatye, 453 F.3d at 1188. We lack jurisdiction to review Khachutur’s claim

based on membership in a disfavored group, because he did not raise it before the

BIA. See Barron, 358 F.3d at 677-78. Accordingly, petitioners’ withholding of

removal claims fail.

       Lastly, substantial evidence also supports the agency’s denial of CAT relief

because petitioners failed to establish it is more likely than not they will be tortured

in Armenia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).

       PETITION FOR REVIEW DISMISSED in part; DENIED in part.




KN/Research                                3                                     04-71045
