Lilit Gorginyan v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2022
• Docket: 16-70048
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LILIT GORGINYAN; ARAKSYA No. 16-70048 NORDIKYAN; SARKIS NORDIKYAN, Agency Nos. A095-410-720 Petitioners, A095-410-721 A077-998-592 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

SARKIS NORDIKYAN, AKA Zorik No. 16-70322 Manvelyan,

Petitioner, Agency No. A077-998-592

v.

MERRICK B. GARLAND, Attorney General,

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

Submitted February 11, 2022**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California

Before: WARDLAW, IKUTA, and BADE, Circuit Judges.

Lilit Gorginyan, Sarkis Nordikyan, and their minor daughter, natives and

citizens of Armenia, petition for review of orders of the Board of Immigration

Appeals (“BIA”) denying their motions to reopen removal proceedings. We

review for an abuse of discretion and deny the petitions. See Salim v. Lynch, 831

F.3d 1133, 1137 (9th Cir. 2016) (explaining that the court reviews the denial of a

motion to reopen for abuse of discretion and reviews the “determination of legal

questions de novo, and factual findings for substantial evidence”).

1. A petitioner must generally file a motion to reopen removal proceedings

“within 90 days of the date of entry of a final administrative order of removal.” 8

U.S.C. § 1229a(c)(7)(C)(i). However, this deadline does not apply to a motion to

reopen “based on changed circumstances arising in the country of nationality or in

the country to which deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or presented at the previous

hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

2. Petitioners moved to reopen removal proceedings based on an alleged

change in country conditions since their removal proceedings. Petitioners argue

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 that the BIA erred in determining that the evidence in support of their motions—

increased persecution of journalists and political activists after their initial removal

proceedings and in connection with a June 2015 protest over electricity rate

hikes—did not demonstrate changed country conditions in Armenia. In support of

their motions to reopen, Petitioners submitted Lilit’s affidavit, letters from various

people in her former village in Armenia, several news articles, and country

conditions evidence.1 The affidavit and articles report that police injured

journalists, damaged their equipment, or detained them along with protestors in

connection with the June 2015 protest. The country conditions evidence mentions

“several incidents of violence toward journalists in connection with citizens’

protests,” that the “government did not always uphold” the rights of “freedom of

speech and press,” and that the government did not conduct credible investigations

of attacks on journalists.

The BIA reasonably concluded that this evidence did not demonstrate a

change in country conditions because it described continuing issues, as illustrated

by evidence submitted in support of Lilit’s original asylum application, which

noted the “arbitrary detention of journalists and harassment of the media” in

Armenia, limits on press freedom, and a failure to prosecute incidents of

1 Petitioners assert, without citation, that the BIA was required to accept the “country background documents” as true. This claim lacks merit because there is no indication that the BIA failed to do so.

3 government retaliation against journalists. The 2002 country reports indicate that

the Armenian government’s “human rights record remained poor,” and details

police detention of protestors, and related warrantless searches.

As evidence of changed circumstances, Petitioners also point to incidents of

police abuse during arrests, detention, and interrogation. But substantial evidence

supports the agency’s conclusion that this is not a changed circumstance because

the 2001 and 2002 country conditions evidence report similar incidents, and the

2014 country report describes this sort of abuse as “continued.” See Rodriguez v.

Garland, 990 F.3d 1205, 1210 (9th Cir. 2021) (“General references to ‘continuing’

or ‘remaining’ problems is not evidence of a change in a country’s conditions.”).

The BIA did not abuse its discretion in concluding that Petitioners failed to

demonstrate changed country conditions, “the most basic requirement for

reopening.” Id.

3. Petitioners also allege a change in Lilit’s personal circumstances. Because

“[c]hanged country conditions are always mandatory to a motion to reopen based

on ‘changed conditions’—even one based on a ‘hybrid’ claim,” id., absent a

showing of changed country conditions, a change in a petitioner’s personal

circumstances is insufficient to justify reopening removal proceedings, id. at 1209–

11 (explaining that failure to demonstrate changed country conditions is an

independent ground upon which the BIA may deny a motion to reopen).

4 PETITIONS DENIED.