Suren Avagyan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 18-70533
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUREN AVAGYAN, No. 18-70533

Petitioner, Agency No. A075-519-291

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

Respondent.

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

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Suren Avagyan, a native and citizen of Armenia, petitions for review of the

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

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen. Singh v. Ashcroft, 367

* 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). Avagyan’s request for oral argument, set forth in his opening brief, is denied. F.3d 1182, 1185 (9th Cir. 2004). We deny in part and dismiss in part the petition

for review.

The BIA did not abuse its discretion in denying Avagyan’s untimely and

number-barred motion to reopen, where he failed to demonstrate prima facie

eligibility for relief to qualify for an exception to the time and number limitations

for motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597

F.3d 983, 986 (9th Cir. 2010) (the BIA can deny a motion to reopen for failure to

establish prima facie eligibility for the relief sought).

We lack jurisdiction to review Avagyan’s challenge to the agency’s

discretionary decision not to reopen proceedings sua sponte, where Avagyan failed

to raise a colorable constitutional claim or question of law. See Ekimian v. INS,

303 F.3d 1153, 1159 (9th Cir. 2002); see also Bonilla v. Lynch, 840 F.3d 575, 588

(9th Cir. 2016) (“[T]his court has jurisdiction to review Board decisions denying

sua sponte reopening for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.”). Avagyan contends that Ekimian was

wrongly decided, but has identified no basis for revisiting this precedent at this

time. See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) (“A three-judge

panel cannot reconsider or overrule circuit precedent unless ‘an intervening

Supreme Court decision undermines an existing precedent of the Ninth Circuit, and

both cases are closely on point.’” (citation omitted)).

2 18-70533 Avagyan’s request for fees and costs under the Equal Access to Justice Act

is denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 18-70533