Siranush Karapetyan v. Loretta E. Lynch , 649 F. App'x 432 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SIRANUSH KARAPETYAN; ) No. 10-73550
MILENA PETROSYAN, )
) Agency Nos. A097-863-502
Petitioners, ) A097-863-503
)
v. ) MEMORANDUM*
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 6, 2016
Pasadena, California
Before: FERNANDEZ and BEA, Circuit Judges, and GONZALEZ ROGERS,**
District Judge.
Siranush Karapetyan,1 a native of Uzbekistan and citizen of Armenia,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Yvonne Gonzalez Rogers, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
1
Because the petition of Milena Petrosyan, her daughter, is derivative of
(continued...)
petitions for review of the Board of Immigration Appeals’ (BIA) ruling upholding
the Immigration Judge’s (IJ) denial of her motion to reopen,2 and its denial of her
motion to remand to the IJ.3 We deny the petition.
(1) When her applications for asylum, withholding, and Convention
Against Torture relief were denied by the IJ, Karapetyan did not timely appeal that
decision. See 8 C.F.R. § 1003.38(b). Primarily, Karapetyan asserts that her motion
to reopen to pursue an appeal of the merits decision should have been granted,
even though the motion was not filed within ninety days of the date of the merits
decision. See 8 U.S.C. § 1229a(c)(7)(C)(i).4
The BIA agreed with the IJ’s reasons for denying the motion. So do we.
At the outset, Karapetyan had been informed that she must file a Notice of
Appeal to the BIA in a timely fashion. She was prepared to file that notice, but
decided not to do so when a non-lawyer immigration consultant, whose name was
1
(...continued)
hers, we do not consider it separately. It stands or falls with hers.
2
See 8 C.F.R. § 1003.23(b)(3); see also 8 U.S.C. § 1229a(c)(7).
3
Cf. 8 C.F.R. § 1003.2(c)(1), (4).
4
We note that Karapetyan also sought to reopen on the basis of changed
country conditions, and that has a more generous filing period. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). She does not assert that the IJ
erred in denying that request based on the evidence before him.
2
not disclosed, told her that she need not do so. Her decision to rely upon the
advice of the immigration consultant rather than upon the information given to her
by the IJ does not tend to support her claim of equitable tolling. See Singh-Bhathal
v. INS, 170 F.3d 943, 946–47 (9th Cir. 1999). She voluntarily decided to take the
word of the consultant over that of the IJ. Id. at 947. To the extent she asserted
that she was subjected to ineffective assistance of counsel due to the consultant’s
bad advice, that claim fails. The record does not support a determination that the
consultant was an attorney or held himself out as one, and, thus, misled her into
thinking that he was an attorney. See Hernandez v. Mukasey, 524 F.3d 1014,
1017–20 (9th Cir. 2008); cf. Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1094,
1099 (9th Cir. 2005); Jie Lin v. Ashcroft, 377 F.3d 1014, 1023–24 (9th Cir. 2004).
To the extent she asserted fraud, we note that she was not defrauded into thinking
that the immigration consultant was going to file her appeal. He made it plain that
he was not going to do so. But assuming that fraud delayed Karapetyan’s filing of
a motion to reopen, we are unable to say the IJ erred. The IJ reasonably found that
the record before him—which failed to specify any date on which Karapetyan
allegedly discovered the consultant’s fraud—did not establish that Karapetyan had
filed her motion to reopen in a timely manner after the date on which she
discovered, or reasonably should have discovered, the immigration consultant’s
3
fraud. See Avagyan v. Holder, 646 F.3d 672, 680–81 (9th Cir. 2011); Singh v.
Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007).
In short, the BIA did not err. See Toufighi v. Mukasey, 538 F.3d 988,
992–93 (9th Cir. 2008); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1,
112 S. Ct. 812, 815 & n.1, 117 L. Ed. 2d 38 (1992); Bhasin v. Gonzales, 423 F.3d
977, 983 (9th Cir. 2005).
(2) Karapetyan also asserts that the BIA erred when it denied her motion to
remand to the IJ so that she could submit further evidence of changed
circumstances. The standards for granting a motion to remand are essentially the
same as those for a motion to reopen. See Ubau-Marenco v. INS, 67 F.3d 750, 758
(9th Cir. 1995), overruled on other grounds by Fisher v. INS, 79 F.3d 955, 963 (9th
Cir. 1996) (en banc); Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987); cf.
Chandra v. Holder, 751 F.3d 1034, 1036–37 (9th Cir. 2014). Karapetyan does not
address the ultimate merits of the BIA’s determination on the motion to remand.
Karapetyan objects only that the BIA erroneously engaged in fact-finding when it
considered Karapetyan’s new evidence and determined that it was not sufficiently
different from that before the IJ when he denied her motion to reopen. See
Najmabadi v. Holder, 597 F.3d 983, 986–87 (9th Cir. 2010). However, the BIA is
permitted some limited review of evidence offered in support of a motion to reopen
4
or remand: Indeed, the BIA may deny such motion if it determines that the
evidence fails “to establish a prima facie case for the relief sought,” fails “to
introduce previously unavailable, material evidence,” or “even if these
requirements [are] satisfied, the movant would not be entitled to the discretionary
grant of relief which he [seeks].” Id. at 986. Here, as the BIA pointed out, the new
evidence was much the same as that which Karapetyan had previously presented to
the IJ. The IJ had already found the earlier evidence insufficient to establish a
prima facie claim for asylum. Thus, the BIA did not run afoul of the prohibition
on fact-finding by holding that the new, substantially similar evidence was also
insufficient to establish a prima facie case for relief and thus Karapetyan “would
not be entitled to the discretionary grant of relief” she sought. Id. at 986, 991; see
also 8 C.F.R. § 1003.1(d)(1), (3).
Petition DENIED.
5