Vigen Najaryan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2019
• Docket: 15-72491
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIGEN VOSKANOVICH NAJARYAN, Nos. 15-72491 AKA Vigen Najaryan, 16-71632

Petitioner, Agency No. A077-823-840

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

Respondent.

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

Argued and Submitted February 11, 2019 San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and LASNIK,** District Judge.

Petitioner Vigen Najaryan (Najaryan) petitions for review of the Board of

Immigration Appeal’s (BIA) denial of his two untimely motions to reopen

premised on changed country conditions and a change in the law.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Petition No. 15-72491

We dismiss Najaryan’s petition for review of the BIA’s denial of sua sponte

reopening based on changed country conditions because Najaryan fails to

demonstrate the requisite legal or constitutional error. See Menendez v. Whitaker,

908 F.3d 467, 471 (9th Cir. 2018) (explaining that “we have jurisdiction to review

the reasoning behind the BIA’s sua sponte denial of reopening for the limited

purpose of reviewing the reasoning behind the decisions for legal or constitutional

error”). (citation and internal quotation marks omitted).

Petition No. 16-71632

Relying on Johnson v. United States, 559 U.S. 133 (2010), Najaryan asserts

that the BIA erred in denying sua sponte reopening premised on a change in law

rendering his prior conviction for assault with a deadly weapon in violation of Cal.

Penal Code § 245(a)(2) a non-removable offense. Although the Supreme Court

decided Johnson in 2010, Najaryan never challenged his prior conviction based on

Johnson’s holding prior to the BIA’s 2011 decision, or prior to our denial of

Najaryan’s petition for review in 2015. See Najaryan v. Holder, 593 F. App’x 707,

708 (9th Cir. 2015) (holding that Najaryan’s conviction in violation of Cal. Penal

Code § 245(a)(2) was a removable offense). Thus, there was no “fundamental

change in the law . . . . represent[ing] a departure from established principles”

2 warranting sua sponte reopening. Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir.

2016), as amended (citation and internal quotation marks omitted).

In any event, we have held post-Johnson that assault with a deadly weapon

in violation of Cal. Penal Code § 245(a)(1) constitutes a crime of violence. See

United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1067-68 (9th Cir. 2018)

(holding that our pre-Johnson precedent remains valid because a conviction in

violation of Cal. Penal Code § 245 is categorically a crime of violence); see also

United States v. Guizar-Rodriguez, 900 F.3d 1044, 1049 n.5 (9th Cir. 2018)

(concluding that “even the least touching with a deadly weapon or instrument is

violent in nature,” and this “reasoning applies even after Johnson”) (citation,

alteration, and internal quotation marks omitted).

Petition For Review in No. 15-72491 DISMISSED.

Petition For Review in No. 16-71632 DENIED.