Karine Petrosyan v. Loretta E. Lynch ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARINE PETROSYAN; HARUTYUN No. 10-72715
KHACHATRYAN; SERGEY
KHACHATRYAN, Agency Nos. A098-824-758
A098-824-759
Petitioners, A098-824-760
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2016**
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
Petitioners Karine Petrosyan (Petrosyan), Harutyun Khachatryan, and
Sergey Khachatryan, Armenian citizens, challenge the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appeals’ (BIA) denial of Petrosyan’s motion to reopen.1 Petrosyan contends that
reopening of her immigration proceedings is warranted due to ineffective
assistance of counsel and changed country conditions. We review the BIA’s
decision for abuse of discretion. Maravilla Maravilla v. Ashcroft, 381 F.3d 855,
857 (9th Cir. 2004).
The BIA did not abuse its discretion in denying Petrosyan’s untimely motion
to reopen because Petrosyan failed to exercise due diligence in pursuing her
ineffective assistance of counsel claim. Despite dissatisfaction with her attorney’s
performance, Petrosyan waited two years after the BIA’s denial of her appeal to
file her motion to reopen and “took no affirmative steps to investigate” whether her
counsel rendered ineffective assistance. Avagyan v. Holder, 646 F.3d 672, 680
(9th Cir. 2011).
In addition, Petrosyan failed to establish that her “counsel’s performance
was so inadequate that it may have affected the outcome of the proceedings.”
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (citation and
internal quotation marks omitted). The immigration judge’s adverse credibility
determination was based on Petrosyan’s inconsistent testimony, her demeanor, and
1
This memorandum disposition refers to petitioners collectively as
Petrosyan because her husband’s and son’s petitions are derivative.
2
her nonresponsive answers. See id. (requiring claim to be plausible before finding
counsel’s performance inadequate).
Finally, the BIA did not abuse its discretion in denying Pestrosyan’s motion
to reopen premised on changed country conditions. The BIA properly concluded
that country condition reports and other evidence concerning political persecution
in Armenia were immaterial to Petrosyan’s asylum claim because she failed to
credibly establish that she was persecuted as a political activist. Toufighi v.
Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008), as amended (holding that new
evidence of persecution was immaterial due to failure to establish “a prima facie
case for eligibility”).
PETITION DENIED.
3