Ashot Avoyan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2020
• Docket: 17-71834
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 16 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHOT AVOYAN, No. 17-71834

Petitioner, Agency No. A071-069-916

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted July 14, 2020**

Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.

Petitioner Ashot Avoyan, a native and citizen of Armenia, seeks review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for

* 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). abuse of discretion the denial of a motion to reopen. Yeghiazaryan v. Gonzales,

439 F.3d 994, 998 (9th Cir. 2006). We deny the petition for review.

The BIA did not abuse its discretion in denying Avoyan’s second, untimely

motion to reopen, see 8 C.F.R. § 1003.2(c)(2), where he failed to qualify for an

exception to the time and number limitations, see id. § 1003.2(c)(3)(ii). A motion

to reopen may be filed any time for purposes of seeking asylum, withholding of

removal, or CAT relief because of changed country conditions, if supported by

evidence that is “material and was not available and could not have been

discovered or presented at the previous hearing.” Id.; see Go v. Holder, 744 F.3d

604, 607–09 (9th Cir. 2014).

Avoyan’s evidence did not satisfy this requirement, where it did not

establish material, changed circumstances in Armenia since Avoyan’s final hearing

on August 29, 2011. See Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016)

(“[T]he changed country conditions exception is concerned with two points in

time: the circumstances of the country at the time of the petitioner’s previous

hearing, and those at the time of the motion to reopen.”). Therefore, the BIA did

not err in denying Avoyan’s motion on this basis. See Najmabadi v. Holder, 597

F.3d 983, 989 (9th Cir. 2010) (upholding denial of untimely motion to reopen

2 where evidence showed a continuation of country conditions that were present at

the time of the removal hearing).

The record does not support Avoyan’s argument that the BIA made an

implicit finding that Avoyan’s and his brother’s declarations were not credible.

The BIA properly took the assertions in both declarations into account when it held

that the evidence did not show a material change in conditions. We also reject the

assertion that the BIA failed to apply the appropriate legal standard or consider all

relevant issues in its decision. Because Avoyan did not demonstrate changed

country conditions, as required to qualify for the timely filing exception under §

1003.2(c)(3)(ii), it was unnecessary for the BIA to consider whether Avoyan

established prima facie eligibility for his underlying claims. See INS v. Doherty,

502 U.S. 314, 323 (1992).

PETITION FOR REVIEW DENIED.