Yeghiazaryan v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2023
• Docket: 22-501
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AGHUNIK YEGHIAZARYAN; ARMINE No. 22-501 LALAYAN; SAMSON Agency Nos. LALAYAN; SERZH A208-601-286 LALAYAN; ZHIRAYR LALAYAN, A208-601-289 A208-601-288 Petitioners, A208-601-287 A208-601-349 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted October 16, 2023** Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.***

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Petitioners Zhirayr Lalayan (“Lalayan”), his wife Aghunik Yeghiazaryan,

and their three minor children, Serzh Lalayan, Samson Lalayan, and Armine

Lalayan petition for review of the Board of Immigration Appeals’ (“BIA”) denial

of the motion to reopen Lalayan’s asylum claim on the basis of new evidence. We

have jurisdiction under 8 U.S.C. § 1252. We review the agency’s denial of a

motion to reopen for abuse of discretion. Fonseca-Fonseca v. Garland, 76 F.4th

1176, 1180 (9th Cir. 2023). We deny the petition.1

A noncitizen may file a motion to reopen proceedings with the BIA to

present previously unavailable material evidence. See 8 C.F.R. § 1003.2(c). The

BIA may exercise its discretion to grant a motion to reopen if persuaded that “the

new evidence offered would likely change the result in the case.” Fonseca-

Fonseca, 76 F.4th at 1181 (citing Matter of Coelho, 20 I. & N. Dec. 464, 473

(B.I.A. 1992)). The noncitizen must show that “it is at least more probable than

not that the new evidence would change the outcome of the claim.” Id. at 1183.

Where an immigration judge (“IJ”) has denied an underlying asylum claim due to

an adverse credibility determination, the noncitizen “must either overcome the

prior determination or show that the new claim is independent of the evidence that

was found to be not credible.” Singh v. Garland, 46 F.4th 1117, 1122 (9th Cir.

1 Because we deny the petition, Lalayan’s motion for a stay of removal pending review is denied as moot.

2 22-501 2022) (quoting Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)).

The IJ denied Lalayan’s application because of an adverse credibility

determination. The IJ reached this conclusion after finding implausibilities

surrounding three of Lalayan’s claims: that he belatedly discovered the

embezzlement at his place of work, chose not to notify his employer, and decided

to come to the United States only after arriving in Mexico. We upheld the IJ’s

decision, concluding that the adverse credibility determination was supported by

substantial evidence. See Lalayan v. Garland, 4 F.4th 822, 837–41 (9th Cir. 2021).

In his motion to reopen, Lalayan submitted new evidence that generally

corroborated his asylum claim. The new evidence, however, did not address the

implausibilities identified by the IJ or clearly offer the rehabilitation necessary to

overcome the IJ’s adverse credibility determination in the underlying proceeding.

Given the general nature and limited rehabilitative value of Lalayan’s new

evidence, the agency could reasonably conclude that the new evidence would not

likely change the result in the case. See Fonseca-Fonseca, 76 F.4th at 1181. On

this record, the BIA’s decision not to reopen proceedings was not “arbitrary,

irrational, or contrary to law.” Singh, 46 F.4th at 1121 (quoting Agonafer v.

Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017)). Consequently, the BIA did not

abuse its discretion in denying Lalayan’s motion to reopen.

PETITION FOR REVIEW DENIED.

3 22-501