Mikayel Poghosyan v. Attorney General United States , 556 F. App'x 84 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3931
___________
MIKAYEL POGHOSYAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-476-171)
Immigration Judge: Honorable R.K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 19, 2014
Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion filed: February 26, 2014)
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OPINION
___________
PER CURIAM
Mikayel Poghosyan petitions for review of an order of the Board of Immigration
Appeals (BIA) denying his motion to reopen. For the reasons detailed below, we will
deny the petition for review.
Poghosyan is a citizen of Armenia. He was admitted to the United States in July
2001 as a nonimmigrant visitor, and in June 2002, filed applications for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT). The
Department of Homeland Security then issued a notice to appear, charging that
Poghosyan was removable under 8 U.S.C. § 1227(a)(1)(B) as an alien who had stayed in
the United States longer than permitted.
Poghosyan appeared before an Immigration Judge (IJ) and testified in support of
his applications. He claimed that opponents of the politician Vano Syryaderyan believed
that Poghosyan worked for and was loyal to Syryaderyan. Based on this belief,
Poghosyan testified, these individuals beat him, harassed him, and caused him twice to
fail an examination to become a police officer.
The IJ concluded that Poghosyan had not testified credibly and thus denied all
relief to him. The credibility determination was based in part on the IJ’s evaluation of a
newspaper article that Poghosyan had submitted, which purported to show that he was
hated in Armenia. The government forwarded the article to the American Consulate in
Armenia to assess its veracity; the investigator was unable to find any record whatsoever
of the newspaper, which the IJ concluded reflected negatively on Poghosyan’s credibility.
Poghosyan appealed to the BIA, which dismissed his appeal. The BIA perceived no error
in the IJ’s credibility determination, including the IJ’s analysis of the newspaper article.
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Poghosyan then filed a petition for review to this Court, which we denied in May 2008.
See Poghosyan v. Att’y Gen., 276 F. App’x 254 (3d Cir. 2008).
Poghosyan was removed to Armenia on August 12, 2009, and returned to the
United States without permission three months later. In July 2013, he filed the motion to
reopen that is at issue here. That motion concerns, in large part, the newspaper article
discussed above. Poghosyan stated that the newspaper article had been mistranslated;
that is, while the original translation stated that the newspaper was published in the
Armenian capital city of Yerevan, it was actually published in the nearby city of
Ashtanak. Thus, Poghosyan argued, the investigator’s failure to find any record of the
newspaper was the result of his searching in the wrong city. In addition to a re-translated
version of the newspaper article, Poghosyan also submitted documentation concerning
current conditions in Armenia.
The BIA denied Poghosyan’s motion, concluding that it was untimely and did not
qualify for any exception to the general time limitation. More specifically, the BIA ruled
that Poghosyan had failed to present material evidence of changed country conditions in
Armenia; that the re-translated newspaper article did not qualify as “new or previously
unavailable evidence”; that the agency’s previous credibility determination had not been
based solely on the newspaper article; and that Poghosyan had not presented an
exceptional situation that warranted sua sponte reopening. Poghosyan then filed a timely
petition for review.
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We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the BIA’s denial of
Poghosyan’s motion to reopen for abuse of discretion. See Borges v. Gonzales, 402 F.3d
398, 404 (3d Cir. 2005). Motions to reopen are “plainly disfavor[ed],” because “[t]here is
a strong public interest in bringing litigation to a close as promptly as is consistent with
the interest in giving the adversaries a fair opportunity to develop and present their
respective cases.” INS v. Abudu, 485 U.S. 94, 107, 110 (1988). The BIA’s decision is
thus entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.
2003) (quotation marks omitted), and it “will not be disturbed unless [it is] found to be
arbitrary, irrational, or contrary to law,” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004) (quotation marks omitted).
Here, because Poghosyan did not file his motion to reopen within 90 days of the
final order of removal, he may proceed only if his motion relies on evidence of “changed
country conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Such a motion must be based on
“evidence [that] is material and was not available and would not have been discovered or
presented at the previous proceeding.” Id.
The BIA did not err in denying Poghosyan’s motion to reopen. Poghosyan spends
the majority of his brief arguing that the BIA abused its discretion by refusing to reopen
the case sua sponte; however, “[b]ecause the BIA retains unfettered discretion to decline
to sua sponte reopen or reconsider a deportation proceeding, this court is without
jurisdiction to review a decision declining to exercise such discretion to reopen or
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reconsider the case.” Desai v. Att’y Gen., 695 F.3d 267, 269 (3d Cir. 2012) (quotation
marks omitted). While there are two narrow exceptions to this rule — a decision to deny
sua sponte relief can be reviewed if it is based on an incorrect legal premise, see id., or if
the BIA has “restricted the exercise of its discretion by establishing a ‘general policy’ of
reopening sua sponte” under specific circumstances, Cruz v. Att’y Gen., 452 F.3d 240,
249 (3d Cir. 2006) — neither exception applies here. Therefore, we will dismiss
Poghosyan’s petition insofar as it challenges the BIA’s decision not to reopen sua sponte.
Poghosyan next objects to the BIA’s rejection of his claim of changed country
conditions. We discern no error in the BIA’s conclusion that he failed to present the
requisite “evidence [that] is material and was not available and would not have been
discovered or presented at the previous proceeding.” § 1229a(c)(7)(C)(ii). As an initial
matter, it was reasonable for the BIA to conclude that the evidence concerning current
conditions in Armenia was not “material” because it did not rebut the agency’s prior
adverse credibility finding. See Khan v. Att’y Gen., 691 F.3d 488, 497 (3d Cir. 2012).
Further, while the re-translated newspaper article does bear on Poghosyan’s credibility, it
was reasonable for the BIA to conclude that this evidence was available and could have
been presented at the initial hearing. It was Poghosyan who submitted the article with the
faulty translation, and the article’s provenance was discussed (and briefed) before the IJ;
the BIA did not abuse its discretion in concluding that the correct translation could have
been presented at that time. See Krougliak v. INS, 289 F.3d 457, 460 (7th Cir. 2002).
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Finally, Poghosyan contends that the BIA violated his due process rights. To
prove such a claim, Poghosyan “must show that he was prevented from reasonably
presenting his case.” Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (quotation
marks omitted). Poghosyan, however, identifies no deficiency in the procedures the BIA
employed in the reopened proceedings. In essence, Poghosyan simply disagrees with the
BIA’s holding, and is “cloth[ing] [that argument] in the garb of due process.” Jarbough
v. Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007). His challenges to the merits of the
BIA’s decision fail for the reasons detailed above. To the extent that he asserts that his
due process rights were violated in the underlying hearing, we lack jurisdiction to
consider that claim. See Stone v. INS, 514 U.S. 386, 405 (1995); Ke Zhen Zhao v. U.S.
Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).
Accordingly, we will dismiss Poghosyan’s petition for review in part and deny it
in part.
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