NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIKHAIL SOKOL, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71361

Agency No. A094-533-494

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 29, 2021**

San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and HUCK,*** District Judge.

Mikhail Sokol, a native and citizen of Ukraine, seeks review of the Board of 

Immigration Appeals’ (BIA) decision dismissing his appeal of the Immigration 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Paul C. Huck, United States District Judge for the U.S. 

District Court for Southern Florida, sitting by designation.

FILED

AUG 4 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Judge’s (IJ) order denying withholding of removal and protection under the 

Convention Against Torture (CAT). Factual determinations are reviewed for 

substantial evidence and must be upheld unless the record compels a contrary 

conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Legal 

questions are reviewed de novo. Rivera v. Mukasey, 508 F.3d 1271, 1274–75 (9th 

Cir. 2007). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Sokol argues that the IJ erred as a matter of law when it found his armed 

robbery conviction was a particularly serious crime. We review a finding that an 

offense constitutes a particularly serious crime for an abuse of discretion. 

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). “[A] crime is 

particularly serious if the nature of the conviction, the underlying facts and 

circumstances and the sentence imposed justify the presumption that the convicted 

immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 

1107 (9th Cir. 2011) (en banc). We determine whether a crime is particularly 

serious on a case-by-case basis. Matter of Frentescu, 18 I. & N. Dec. 244, 247

(BIA 1982), superseded by statute in part, 8 U.S.C. § 1253(h) (1991), as 

recognized in Miguel–Miguel v. Gonzales, 500 F.3d 941, 946 (9th Cir. 2007); 

Avendano-Hernandez, 800 F.3d at 1077. By considering the nature of the 

conviction, the circumstances and underlying facts of the conviction, and the type 

of sentence imposed, the IJ applied the correct legal standard and properly 
3 

exercised its discretion when it concluded that Sokol’s armed robbery conviction 

was a particularly serious crime precluding withholding of removal. See 

Frentescu, 18 I. & N. Dec. at 247; Delgado, 648 F.3d at 1107.

Sokol also argues that he should receive withholding of removal because he 

proved that he was a member of two particular social groups: Pentecostal 

Christians and Ukrainians presumed to be pro-Russian. But as discussed above, 

Sokol is not eligible for withholding.

He further argues that he is entitled to protection under the CAT because he 

demonstrated that he suffered past persecution and that he more likely than not 

would suffer future persecution should he return to Ukraine. These two 

arguments—protected social group and persecution—coupled together set out the 

persecution standard for asylum, not the torture standard for the CAT. To qualify 

for relief under the CAT, Sokol must demonstrate that it is more likely than not 

that he would be tortured if removed to Ukraine, and that any torture that he might 

face would be “inflicted by or at the instigation of or with the consent or 

acquiescence of” the Ukrainian government. See 8 C.F.R. § 208.18(a)(1); 

Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001). Although in specific 

situations there can be an overlap, torture is not the same as persecution, and 

persecution is not always torture. See Singh v. Whitaker, 914 F.3d 654 (9th Cir. 

2019) (holding that just because the petitioner “suffered persecution in the past 
4 

does not necessarily mean he [would] be tortured in the future”). Sokol fails to 

argue that he was or is likely to be tortured. Therefore, Sokol has waived his CAT 

claim. In re Lowenschuss, 67 F.3d 1394, 1402 (9th Cir. 1995) (“An issue not 

discussed in a brief . . . is deemed to be waived.”).

Even if Sokol did not waive his CAT claim, he has not offered sufficient 

evidence to compel this Court to find that he is eligible for CAT relief. We review 

an IJ’s findings that an applicant is not eligible for relief under the CAT for 

substantial evidence and remand only if the record compels a contrary conclusion. 

Konou v. Holder, 750 F.3d 1120, 1124 (9th Cir. 2014). Substantial evidence 

supports the agency’s determination that Sokol failed to demonstrate that he would 

more likely than not be tortured upon his return to Ukraine because the past harm 

Sokol experienced did not rise to the level of past torture. Substantial evidence 

also supports the agency’s determination that Sokol does not have a reasonable 

fear of torture by or at the acquiescence of a public official despite his presumed 

pro-Russian beliefs and Pentecostal Christian faith.

PETITION DENIED.1

1 Sokol’s motion for stay of removal (Dkt. No. 6) is denied as moot. Similarly, 

Sokol’s motions requesting that this Court take judicial notice of the transcript 

from his underlying criminal conviction and his pending Petition for Writ of 

Habeas Corpus Proceeding for Ineffective Assistance of Counsel (Dkt. Nos. 13 and 

36) are also denied. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996) (“The 

Act limits our review to the ‘administrative record upon which the deportation 

order is based and the Attorney General’s findings of fact.’” (quoting 8 U.S.C. § 
1105a(a)(4))). Even if the Court were to consider the transcript, contrary to 

Sokol’s misrepresentation in his brief, it clearly substantiates the IJ’s ruling that 

Sokol knowingly participated in and was convicted of a particularly serious 

crime—armed robbery.