Gevorg Sukiasyan v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEVORG SUKIASYAN, AKA Maxim No. 15-73523
Chekan,
Agency No. A099-903-951
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON,*** District
Judge.
Gevorg Sukiasyan, a native and citizen of Armenia, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) denying his untimely
*
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 Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
motion to reopen. Sukiasyan filed the motion seeking a new application for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”) due to changed country conditions in Armenia. We have
jurisdiction pursuant to 8 U.S.C. § 1252. We review a BIA decision on a motion to
reopen for abuse of discretion. Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.
2014). We deny the petition for review.
1. The BIA did not abuse its discretion in determining that there was no
evidence of changed conditions in Armenia. Sukiasyan did not put forth any new
evidence showing that the types of harm he fears in Armenia have increased or
intensified, nor was his evidence “qualitatively different from the evidence
presented at his asylum hearing.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.
2004). The articles and report he relied upon state that the Armenian government
continues to target those active in opposition politics, particularly in protest
settings. Although the articles may support a conclusion that protests have
increased, they do not say that the government’s response has been qualitatively or
materially different. Rather, the evidence shows that the rates of injuries and
deaths resulting from government oppression are stagnant, if not lower than in
prior years. Sukiasyan therefore presented no evidence that oppressive conditions
are increasing or intensifying in Armenia.
2. The BIA also did not abuse its discretion by noting a prior adverse
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credibility determination against Sukiasyan. “[T]he BIA may not make adverse
credibility determinations . . . in denying a motion to reopen.” Yang v. Lynch, 822
F.3d 504, 509 (9th Cir. 2016). Facts presented in supporting affidavits “must be
accepted as true unless inherently unbelievable.” Bhasin v. Gonzales, 423 F.3d
977, 987 (9th Cir. 2005).
Although the BIA found the prior adverse credibility determination notable,
its determination that Sukiasyan did not adequately support his claim of changed
conditions rests on more than that notation alone. First, the BIA refused to credit
Sukiasyan’s sworn declaration from 2012 because it related to allegations of
persecution that predated his original merits hearing. Second, the BIA declined to
adopt Sukiasyan’s unsupported speculation that the Armenian authorities knew of
his passport issuance and were searching for him. Third, the BIA determined that
Sukiasyan’s mother’s letter was “sparse and unpersuasive” because it described
only one instance in three years where police came searching for him.
These findings do not turn on credibility determinations, but rather on the
lack of factual evidence Sukiasyan presented to support his claim. They are
enough to support the BIA’s final decision, even if the BIA also noted the prior
adverse credibility finding.
3. The BIA should not have considered the continued presence of
Sukiasyan’s family in Armenia as significant to his showing of changed conditions
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there, however we find that any error was harmless. The continued presence of
family members in the country of origin does not necessarily rebut an applicant’s
well-founded fear of future persecution unless there is evidence that the family is
similarly situated or subject to similar risk. See Zhao v. Mukasey, 540 F.3d 1027,
1031 (9th Cir. 2008).
Aside from Sukiasyan’s characterization of his family as highly politically
involved, there is no evidence in the record postdating his original merits hearing
to support a finding that his family members were similarly situated to him such
that their safety in Armenia should rebut his claim of feared persecution. The BIA
may have abused its discretion in relying on this factor to deny Sukiasyan’s
motion. However, in light of the BIA’s other bases for denial, described supra,
this error alone does not warrant granting Sukiasyan’s petition.
4. Sukiasyan argues that, in addition to meeting his high burden of
showing changed country conditions, he also established a prima facie claim for
asylum and withholding. The BIA did not rule on this argument, however, and it is
unnecessary to address here because we have already determined that the BIA did
not abuse its discretion in finding that Sukiasyan failed to meet his burden to
reopen his case.
THE PETITION FOR REVIEW IS DENIED.
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