Nshan Zadelyan v. Eric H. Holder Jr. ( 2012 )

FILED
NOT FOR PUBLICATION JAN 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NSHAN ZADELYAN; AZNIV No. 08-74986
ANTONYAN; RUBEN ZADELYAN;
KARAPET ZADELYAN, Agency Nos. A075-609-856
A075-609-857
Petitioners, A075-609-858
A075-609-859
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2011 **
San Francisco, California
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Nshan Zadelyan, his wife Azniv, and their two sons Karapet and Ruben,
natives of Armenia, petition for review of an order by the Board of Immigration
Appeals (BIA) denying their motion to reopen. We review the denial of a motion
*
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).
to reopen for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002). We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252. The
facts of this case are known to the parties. We need not repeat them here.
We lack jurisdiction to review the BIA’s June 29, 2006 order denying the
Zadelyans’ asylum, withholding of removal, and Convention Against Torture
claims. Petitioners failed to seek timely review; the “time limit is mandatory and
jurisdictional, and cannot be tolled.” Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.
2003).
The BIA did not abuse its discretion in denying Petitioners’ untimely motion
to reopen. Petitioners failed to prove that either changed country conditions, see
Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004), or ineffective assistance of
counsel, see Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir. 2003), should excuse
their tardiness.
Appellants’ argument that we did not previously rule on the immigration
judge’s (IJ’s) adverse credibility decision is incorrect. We did consider and affirm
the IJ’s adverse credibility decision, and that is the law of the case. The BIA did
not err by relying on the adverse credibility decision when considering changed
country conditions because the adverse credibility decision was the law of the case
and the alleged new facts were insufficient to warrant reopening the case.
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The BIA also did not err in rejecting Karapet and Ruben’s asylum claim.
The Board correctly concluded that the twins’ nineteen-month delay in filing their
claim after turning twenty-one was not a “reasonable period.” See 8 C.F.R. §
1208.4(a)(4)(i)(C) & (ii).
Finally, the BIA did not err in denying Petitioners’ motion to reopen on
account of their confidentiality claim concerning 8 C.F.R. § 1208.6(a). The
Zadelyans concede that they have no evidence that the Armenian government
actually uses PACER to persecute asylum seekers.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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