Karine Petrosyan v. Loretta E. Lynch

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2017
• Docket: 10-72715
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 09 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARINE PETROSYAN; HARUTYUN No. 10-72715 KHACHATRYAN; SERGEY KHACHATRYAN, Agency Nos. A098-824-758 A098-824-759 Petitioners, A098-824-760

v. MEMORANDUM* LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted March 16, 2016** San Francisco, California

Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.

Petitioners Karine Petrosyan (Petrosyan), Harutyun Khachatryan, and

Sergey Khachatryan, Armenian citizens, challenge the Board of Immigration

* 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). Appeals’ (BIA) denial of Petrosyan’s motion to reopen.1 Petrosyan contends that

reopening of her immigration proceedings is warranted due to ineffective

assistance of counsel and changed country conditions. We review the BIA’s

decision for abuse of discretion. Maravilla Maravilla v. Ashcroft, 381 F.3d 855,

857 (9th Cir. 2004).

The BIA did not abuse its discretion in denying Petrosyan’s untimely motion

to reopen because Petrosyan failed to exercise due diligence in pursuing her

ineffective assistance of counsel claim. Despite dissatisfaction with her attorney’s

performance, Petrosyan waited two years after the BIA’s denial of her appeal to

file her motion to reopen and “took no affirmative steps to investigate” whether her

counsel rendered ineffective assistance. Avagyan v. Holder, 646 F.3d 672, 680

(9th Cir. 2011).

In addition, Petrosyan failed to establish that her “counsel’s performance

was so inadequate that it may have affected the outcome of the proceedings.”

Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (citation and

internal quotation marks omitted). The immigration judge’s adverse credibility

determination was based on Petrosyan’s inconsistent testimony, her demeanor, and

1 This memorandum disposition refers to petitioners collectively as Petrosyan because her husband’s and son’s petitions are derivative.

2 her nonresponsive answers. See id. (requiring claim to be plausible before finding

counsel’s performance inadequate).

Finally, the BIA did not abuse its discretion in denying Pestrosyan’s motion

to reopen premised on changed country conditions. The BIA properly concluded

that country condition reports and other evidence concerning political persecution

in Armenia were immaterial to Petrosyan’s asylum claim because she failed to

credibly establish that she was persecuted as a political activist. Toufighi v.

Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008), as amended (holding that new

evidence of persecution was immaterial due to failure to establish “a prima facie

case for eligibility”).

PETITION DENIED.