NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARMAN AKOPOVICH KHALULYAN, No. 21-70909 AKA Armen Khalulyan, Agency No. A071-083-833 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 27, 2023 San Francisco, California Before: GOULD, RAWLINSON, and BRESS, Circuit Judges. Arman Khalulyan petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge (IJ) order finding him removable and denying his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He also claims that the BIA erred in affirming the IJ’s denial of his motion for continuance and his related * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. motion for reconsideration. In a published opinion issued concurrently with this memorandum disposition, we hold that Khalulyan’s conviction under 18 U.S.C. § 1029(b)(2) qualifies as an “aggravated felony.” Under the criminal alien review bar, we therefore lack jurisdiction to review the BIA’s “final order of removal.” 8 U.S.C. § 1252(a)(2)(C). The denial of an application for statutory withholding is part of a “final order of removal,” so § 1252(a)(2)(C) strips our jurisdiction to review the agency’s denial of withholding of removal under 8 U.S.C. § 1231(b)(3)(A) absent a colorable legal or constitutional challenge. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). We retain jurisdiction under 8 U.S.C. § 1252 to review the agency’s other determinations, including the denial of CAT protection. See Nasrallah v. Barr, 140 S. Ct. 1683, 1691 (2020) (“[T]he Board’s ruling on a CAT claim . . . does not merge into the final order of removal.”). 1. The BIA did not abuse its discretion in adopting the IJ’s finding that Khalulyan committed a particularly serious crime, which made Khalulyan ineligible for statutory withholding of removal and withholding of removal under the CAT. See Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (standard of review). When, as here, the petitioner was not convicted of a per se particularly serious crime (which requires a 5-year sentence), see 8 U.S.C. § 1231(b)(3)(B), whether a particular offense is a “particularly serious crime” depends on the facts and circumstances. 2 Konou v. Holder, 750 F.3d 1120, 1126–27 (9th Cir. 2014). Our review of the agency’s decision “is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach this conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (quotations omitted). “We may not reweigh the evidence and reach our own determination about the crime’s seriousness.” Id. Here, the agency properly considered “the nature of the conviction, the circumstances and underlying facts of the conviction, and the type of sentence imposed.” Konou, 750 F.3d at 1127. The agency could properly consider Khalulyan’s sentencing enhancement in …
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