Martirosyan v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KARINE MARTIROSYAN, No. 22-1684 Agency No. A079-264-024 Petitioner,

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 19, 2023** Pasadena, California

Before: CLIFTON and SANCHEZ, Circuit Judges, and KORMAN, District Judge.***

Karine Martirosyan, a native and citizen of Armenia, petitions for review

of a final decision by the Board of Immigration Appeals (“BIA”) dismissing her

appeal from the Immigration Judge’s (“IJ”) order denying her application 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). *** The Honorable Edward Korman, United States District Judge for the Eastern District of New York, sitting by designation. asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”), application for adjustment of status, and waiver of

inadmissibility, and finding that she filed a frivolous asylum application. We

have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

1. Martirosyan waived any challenges to the agency’s denial of

asylum, withholding of removal, CAT protection, adjustment of status,

inadmissibility waiver, and the agency’s frivolous asylum application finding by

failing to present arguments on those matters in her opening brief. See

Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (“[A]n issue

referred to in the appellant's statement of the case but not discussed in the body

of the opening brief is deemed waived.”).

2. The IJ found that Martirosyan knowingly made a frivolous

application for asylum by submitting a counterfeit birth certificate in support of

her asylum application despite having received notice of the consequences of

doing so. See Immigration and Nationality Act (INA) § 208(d)(6); 8 C.F.R. §

1208.20(a). At her removal hearing, the IJ probed the inconsistencies in her

testimony regarding her identity and multiple birth certificates. Although

Martirosyan does not challenge the IJ’s frivolousness finding, she contends she

was deprived of due process and the right to a neutral factfinder in her removal

proceedings. She points to a few instances in which the IJ questioned

Martirosyan to resolve discrepancies in her testimony. This does not reflect

prejudgment or bias from the IJ, and the due process clause does not prevent an

2 22-1684 IJ from examining a witness. Antonio-Cruz v. I.N.S., 147 F.3d 1129, 1131 (9th

Cir. 1998) (rejecting a due process claim premised even when an IJ had

conducted “the lion's share of cross-examination” in a “harsh manner and

tone”).

3. We reject Martirosyan’s contention that the transcript provided by

the agency violated Federal Rule of Appellate Procedure 17, and that her case

should be remanded to allow her to testify again. Although some portions of the

transcript contain the word “indiscernible,” Martirosyan has not shown that “a

better translation would have made a difference in the outcome of the hearing.”

See Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir. 2004) (“[T]he dissatisfied

party bears the burden of ensuring that translations and their transcription are

correct and, if they are not, of properly raising the issue to the reviewing body

or court.”). Furthermore, the IJ provided Martirosyan with several opportunities

to redo her testimony and complete the record. We cannot conclude that a

better translation would have resulted in a different outcome to her removal

proceedings.

The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION DENIED.

3 22-1684