Nshan Ayanian v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NSHAN AYANIAN, No. 16-70809
Petitioner,
Agency No.
v. A077-310-327
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 19, 2022
Pasadena, California
Filed April 3, 2023
Before: Danny J. Boggs, * Kim McLane Wardlaw, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Wardlaw
*
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 AYANIAN V. GARLAND
SUMMARY **
Immigration
The panel denied Nshan Ayanian’s petition for review of
a decision of the Board of Immigration Appeals (BIA)
denying his untimely and numerically barred second motion
to reopen, and denied the parties’ joint request to send this
case to mediation in order to put the appeal into abeyance
while Ayanian pursued other forms of relief from removal.
Ayanian unsuccessfully sought asylum and related relief
based on his fear of conscription into the Armenian military
and his fear of money lenders to whom he owed money. He
also previously sought reopening based on changed country
conditions consisting of evidence that some people over the
draft age of 27 were being called for military service by the
Armenian government. As to the BIA’s denial of Ayanian’s
first motion to reopen, this court held that it was not
irrational, arbitrary, or contrary to law for the BIA to deny
reopening because Ayanian failed to show that the Armenian
government would consider him to be either a draft evader
or a conscript, or that the Armenian government would
acquiesce to future torture.
In the present motion to reopen, Ayanian again sought
reopening based on changed country conditions consisting
of the war between Nagorno-Karabakh and Azerbaijan, and
escalating tensions between Armenia and Azerbaijan. Other
than noting these changed circumstances, Ayanian raised the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AYANIAN V. GARLAND 3
same issues he had raised in his unsuccessful first motion to
reopen, and again claimed that he feared persecution on
account of his past evasion of military service and also
feared being conscripted into the military. The panel
observed that on appeal, Ayanian did not identify any
relevant changed country conditions, and conceded that at
age 47, he is currently likely beyond draftable age. The
panel wrote that Ayanian’s repeated allegations that the
Armenian authorities are punishing individuals who evaded
the draft in the past, which this court previously found
insufficient for reopening, did not establish that he now has
a legitimate claim for persecution based on his past evasion
of military service.
At oral argument, Ayanian’s counsel conceded that
Ayanian’s second motion to reopen lacked merit. Ayanian
instead sought a means of holding his removal in abeyance
until he obtained lawful permanent resident status. Although
United States Citizenship and Immigration Services
(USCIS) had approved his mother’s and sister’s I-130 visa
petitions filed on his behalf, Ayanian was awaiting his
priority date to become current, which would then allow him
to submit an I-485 application for adjustment of
status. Government counsel indicated that the government
was not in a position to offer Ayanian any relief, but later
suggested that the case be placed in mediation, which would
give the Department of Homeland Security more time to
consider whether it would exercise prosecutorial discretion
to give Ayanian relief. Ayanian joined in this request. The
panel noted that even after Ayanian filed an I-485
application, it would take time for USCIS to process that
application and determine whether he had met the various
statutory and regulatory requirements for adjustment of
status, and whether the application should be granted as a
4 AYANIAN V. GARLAND
matter of discretion, a process that would likely last for at
least another year, and potentially much longer.
Because Ayanian conceded that the dispute involving his
motion to reopen lacked merit, the parties had not indicated
that transferring the matter to mediation would advance
Ayanian’s adjustment-of status process, and the parties had
not explained how a mediator’s assistance in negotiating,
defining the relevant issues, or exploring alternatives would
assist Ayanian in achieving his goal, the panel concluded
that Ayanian’s petition for review was not the sort of dispute
that was appropriate for mediation. The panel observed that
the parties had not disguised the fact that the objective of
transferring the matter to mediation was to delay Ayanian’s
removal from the country until the government had agreed
to provide discretionary relief. The panel wrote that it was
an abuse of the court’s mediation process to use it for a
purpose unrelated to resolving disputes and as a substitute
for the issuance of a stay. The panel additionally noted that
the government had numerous means to avoid enforcement
against Ayanian, including specific procedural tools to hold
Ayanian’s case in abeyance, such as remanding the matter to
the BIA, moving to reopen proceedings with the BIA or to
dismiss the proceedings, requesting a continuance from the
BIA, or simply deciding not to execute Ayanian’s final order
of removal—decisions which are the prerogative of the
Executive Branch, not the judiciary. Thus, the panel denied
the motion to refer to mediation.
Judge Wardlaw concurred with the majority’s reasoning
and conclusion on the merits of Ayanian’s second motion to
reopen, but dissented from the majority’s denial of the
parties’ joint request to refer this case to mediation. Judge
Wardlaw wrote that mediation is an effective tool to fully,
fairly, and efficiently resolve certain immigration cases, and
AYANIAN V. GARLAND 5
that the court should not be reticent in a proper case to use
it—especially when the government itself joins in such a
request. Judge Wardlaw noted that Ayanian’s family
members had filed a visa petition on his behalf over 15 years
ago, and since that time, Ayanian has dutifully waited in line
and neither engaged in nor been convicted of any conduct
that would render him inadmissible. Judge Wardlaw wrote
that even though Ayanian was finally within striking
distance of a green card, his case, like those of the millions
of noncitizens backlogged in the immigration courts or
seeking relief before USCIS, was snarled in bureaucratic
proceedings through no fault of his own. In Judge
Wardlaw’s view, faced with the extraordinary sanction of
removal, boxed in by a broken immigration system, the
request for a referral to mediation was not unreasonable.
COUNSEL
Judith L. Wood (argued), Law Office of Judith L. Wood, Los
Angeles, California, for Petitioner.
Brooke M. Maurer (argued), Trial Attorney; Carl McIntyre,
Assistant Director; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
6 AYANIAN V. GARLAND
OPINION
IKUTA, Circuit Judge:
Nshan Ayanian petitions for review of an order by the
Board of Immigration Appeals (BIA) denying his second
motion to reopen removal proceedings. But Ayanian’s more
pressing concern, as explained in oral argument, is to avoid
a decision on the merits of this petition for review until he
has successfully obtained relief from removal. To do so, he
joins the government’s request to transfer this matter to
mediation. We deny Ayanian’s petition for review on the
merits. We also deny the joint request to send this case to
mediation in order to put the appeal into abeyance while
Ayanian pursues other forms of relief from removal. In the
matter before us, it is the role of the Executive Branch—not
the judiciary—to allow Ayanian to remain in the country
while he seeks further relief.
I
Ayanian was born in Armenia in 1969, when it was still
a constituent republic of the Soviet Union. When he was 17,
he was drafted into the Soviet Army and served two years of
compulsory service. Following the collapse of the Soviet
Union in 1991, the Republic of Armenia became an
independent state. The new Armenian government ordered
young people to serve in the Armenian army. After reading
several newspaper articles about abuses and crimes against
service members committed by military leaders, Ayanian
refused to join the military and hid from the officers who
came by his parents’ home to recruit him. He fled to Russia
in 1995 and was admitted to the United States in 1996 on a
one-year nonimmigrant visitor visa.
AYANIAN V. GARLAND 7
Ayanian overstayed his nonimmigrant visa, and in May
2000, the government issued a Notice to Appear (NTA),
charging him with being removable for remaining in the
United States longer than permitted. See 8 U.S.C.
§ 1231(a)(1)(B). Ayanian admitted the allegations in the
NTA and conceded removability. He subsequently filed an
application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). At his merits
hearing in 2001, Ayanian testified regarding his service in
the Soviet Army, his fear of being recruited into the
Armenian military, the poor living conditions in Armenia,
and his fear of unnamed money lenders to whom he owed
$800.
The Immigration Judge (IJ) issued an oral decision
denying Ayanian’s applications for relief. The IJ held that
Ayanian was statutorily ineligible for asylum because his
application was untimely, having been filed more than one
year after the date of his arrival in the United States, see 8
U.S.C. § 1158(a)(2)(B), and Ayanian had not demonstrated
the applicability of an exception to this deadline. The IJ next
ruled that Ayanian was not entitled to withholding of
removal, because he failed to establish past persecution or a
well-founded fear of future persecution on account of a
protected ground. See 8 U.S.C. § 1231(b)(3). The IJ also
held that Ayanian was not entitled to CAT relief because he
failed to establish that any government official would
consent or acquiesce to his torture by the lenders to whom
Ayanian owed money. See 8 C.F.R. § 208.18(a)(1). In
connection with these rulings, the IJ found that Ayanian was
not credible. Finally, the IJ granted Ayanian voluntary
departure. In 2003, the BIA affirmed the IJ’s decision in full.
In 2006, we denied in part and dismissed in part
Ayanian’s petition for review. See Ayanian v. Gonzales, 165
8 AYANIAN V. GARLAND
F. App’x 520 (9th Cir. 2006). We held that we lacked
jurisdiction to review the IJ’s determination that Ayanian
was statutorily ineligible for asylum and that the IJ’s denial
of Ayanian’s withholding of removal and CAT claims was
supported by substantial evidence. Id. at 521.
Four years later (and more than nine years after the IJ’s
ruling in his immigration proceedings), Ayanian filed a
motion to reopen his proceedings in light of changed country
conditions in Armenia. In his brief to the BIA, Ayanian cited
reports from 2001 and 2002, which indicated that some
people over the draft age of 27 were being called for military
service by the Armenian government, some conscripts
suffered abuse and ill-treatment, and laws allowed draft
evaders to be punished. The reports also demonstrated the
presence of organized crime connected to corrupt
government officials. Based on these reports, Ayanian
claimed that he had presented a prima facie case for asylum
and withholding due to changed conditions.
The BIA denied Ayanian’s motion to reopen in January
2011, holding that Ayanian had not shown changed
circumstances in Armenia that were material to his claims of
asylum and withholding. The BIA held that Ayanian, who
was then 41, had not made a prima facie showing either that
he would be conscripted into the military at his age or
punished for past draft evasion. The BIA also concluded that
the reports on which Ayanian relied did not show that the
government would accede to his torture by money lenders.
Almost five years later, in 2015, we denied in part and
dismissed in part Ayanian’s petition for review of the BIA’s
denial of his motion to reopen. See Ayanian v. Lynch, 616
F. App’x 321 (9th Cir. 2015). We held that, “[w]hile
Ayanian’s evidence suggests mistreatment of both draft
AYANIAN V. GARLAND 9
evaders and military conscripts, it was not irrational,
arbitrary, or contrary to law for the BIA to conclude that he
did not show that the Armenian government would consider
him to be either a draft evader or a conscript.” Id. at 321–22
(internal quotations and citation omitted). We also affirmed
the BIA’s conclusion that Ayanian failed to show that the
Armenian government would acquiesce to future torture. Id.
at 322. In 2016 (more than fifteen years after the
proceedings before the IJ), Ayanian filed a second motion to
reopen the proceedings, which is the subject of this petition.
The motion stated that a war was pending “between
Nagorno-Karabakh and Azerbaijan,” and that tensions
between Armenia and Azerbaijan had escalated. Other than
noting these changed circumstances, Ayanian raised the
same issues he had raised in his unsuccessful first motion to
reopen, and again claimed that he feared persecution on
account of his past evasion of military service and also
feared being conscripted into the military.
The BIA denied the second motion as untimely and
number-barred. The BIA concluded that, although
Ayanian’s evidence showed changed country conditions (the
outbreak of hostilities between Armenia and Azerbaijan),
these new circumstances were immaterial to his asylum and
withholding claims because they did not show a “reasonable
probability” that “the Armenian Government might try to
conscript a 47-year-old man into military service, or punish
him for not serving.” The BIA also concluded that his
motion did not show changes material to his claim for CAT
relief.
In March 2016, Ayanian timely filed a second petition
for review, this time appealing the BIA’s denial of his
second motion to reopen. After this appeal had been pending
for five years, Ayanian filed a motion in our court to stay
10 AYANIAN V. GARLAND
appellate proceedings for 180 days “to allow time to
examine grounds for a possible alternative to litigation in
this case.” The motion discussed Ayanian’s efforts to adjust
his status to become a lawful permanent resident, as
explained in more detail below. According to the motion,
Ayanian’s mother and sister had each submitted a Form I-
130 (Petition for Alien Relative) on Ayanian’s behalf to the
U.S. Citizenship and Immigration Services (USCIS), and the
USCIS had approved those petitions. Therefore, the motion
explained, Ayanian would be eligible to adjust status once a
visa number was available (one of the steps in obtaining
lawful permanent resident status), “which is anticipated in
the near future.” We granted the motion and stayed appellate
proceedings until May 2, 2022.
In June 2022, Ayanian filed a second motion to stay
appellate proceedings for 180 days. Ayanian claimed that
because the I-130 petitions submitted by both his mother and
sister had been approved, and a visa number was available, 1
he “might be eligible to adjust status to that of LPR [lawful
permanent resident],” or be able to obtain similar relief by
leaving the country and applying to a United States
consulate. Ayanian requested the stay so that he could “seek
Prosecutorial discretion in the form of Judicial
administrative closure” with the Department of Homeland
Security (DHS). We denied Ayanian’s second motion to
stay because the “interests of judicial efficiency” weighed in
favor of deciding Ayanian’s second petition for review,
which had then been pending for six years.
1
This was a misstatement. Ayanian’s visa priority date was not current
as of June 2022, when Ayanian filed his second motion to stay.
AYANIAN V. GARLAND 11
At oral argument, Ayanian’s counsel conceded that
Ayanian’s second motion to reopen lacked merit. 2 Ayanian
instead sought a means of holding his removal in abeyance
until he had obtained lawful permanent resident status.
Counsel claimed that Ayanian was making progress in
obtaining that relief because the date when he would be
eligible to file for a visa application was “only a few months
away.”
In response, government counsel indicated that the
government was not in a position to offer Ayanian any relief.
The government could not confirm that a visa number would
be available for Ayanian within the near future because there
are “so many people in line” for a visa. Nor could the
government “give a definitive answer” as to when Ayanian
would be eligible to apply for adjustment of status. Further,
according to counsel, DHS construed Ayanian’s request that
the government exercise prosecutorial discretion to refrain
from removing Ayanian as a request for a joint motion to
reopen his immigration proceedings before the BIA. In light
of DHS’s backlog, the government would not be able to
consider such a request for 12 to 18 months. Government
counsel speculated that DHS might agree to enter a
temporary stay of removal, but stated “that’s not something
I have the authority to give you right now.” But government
2
Court: Are you conceding that you don't have an argument on the
merits?
Counsel for Ayanian: In a sense, yes. I would fall on the mercy of the
Court and let this case trail until in fact he can get a green card rather
than litigate the merits of the case, yes. https://www.ca9.uscourts.gov/m
edia/video/?20220919/16-70809/ at 9:47 to 10:20
12 AYANIAN V. GARLAND
counsel also could not say whether DHS would actually take
steps to have Ayanian removed.
Turning to the availability of judicial relief, government
counsel stated that she understood why we had denied the
motion to stay appellate proceedings, given the age of the
case, and she also noted that our decision in Sarkar v.
Garland, 39 F.4th 611 (9th Cir. 2022), made it unlikely that
a motion for judicial administrative closure of Ayanian’s
case would succeed. Therefore, government counsel
suggested for the first time that the case be placed in
mediation, which would give DHS more time to consider
whether it would exercise prosecutorial discretion to give
Ayanian relief.
II
We first consider Ayanian’s appeal of the BIA’s denial
of his second motion to reopen. We have jurisdiction to
consider Ayanian’s petition to review the denial of his
second motion to reopen under 8 U.S.C. § 1252. We review
the BIA’s denial for abuse of discretion, see Hernandez-
Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022), and
reverse only if the BIA’s decision was “arbitrary, irrational,
or contrary to law,” Silva v. Garland, 993 F.3d 705, 718 (9th
Cir. 2021).
“Motions to reopen are disfavored due to the ‘strong
public interest in bringing litigation to a close.’” Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1150 (9th Cir. 2010) (per
curiam) (quoting INS v. Abudu, 485 U.S. 94, 107 (1988)).
Generally, “[a]n alien may file one motion to reopen
proceedings,” 8 U.S.C. § 1229a(c)(7)(A), and must file it
“within 90 days of the date of entry of a final administrative
order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(I). However,
“[t]here is no time limit on the filing of a motion to reopen”
AYANIAN V. GARLAND 13
when the motion “is based on changed country conditions
arising in the country of nationality or in the country to
which removal has been ordered, if such evidence is material
and was not available and would not have been discovered
or presented at the previous proceeding.” 8 U.S.C. §
1229a(c)(7)(C)(ii); see also Hernandez-Ortiz, 32 F.4th at
804.
To prevail on a motion to reopen based on changed
country conditions: (1) a petitioner must “produce evidence
that conditions had changed” in the country of removal; (2)
“the evidence [must] be material”; (3) “the evidence must
not have been available and would not have been discovered
or presented at the previous proceeding”; and (4) “the new
evidence, when considered together with the evidence
presented at the original hearing, would establish prima facie
eligibility for the relief sought.” Toufighi v. Mukasey, 538
F.3d 988, 996 (9th Cir. 2008). “The critical question is . . .
whether circumstances have changed sufficiently that a
petitioner who previously did not have a legitimate claim
now does.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th
Cir. 2017) (cleaned up).
Because Ayanian filed the second motion to reopen at
issue in this appeal nearly 15 years after he was ordered
removed by an IJ, and over five years after he filed his first
motion to reopen, his second motion to reopen is untimely
and number-barred unless the exception for changed country
conditions applies. On appeal, Ayanian does not identify
any relevant changed country conditions, and concedes that
at age 47, he is currently likely beyond draftable age. Rather,
he repeats his allegations that the Armenian authorities are
punishing individuals who evaded the draft in the past.
Ayanian presents no new evidence to support this claim,
instead relying on the same evidence that he cited in his first
14 AYANIAN V. GARLAND
motion to reopen. We previously found such evidence
insufficient, see Ayanian, 616 F. App’x at 321–22, and that
is the law of the case, see Gonzalez v. Arizona, 677 F.3d 383,
390 n.4 (9th Cir. 2012), aff'd sub nom. Arizona v. Inter Tribal
Council of Ariz., Inc., 570 U.S. 1 (2013). Thus, Ayanian’s
second motion to reopen fails for the same reason as his first:
his failure to establish that “circumstances have changed
sufficiently [such] that [where he] previously did not have a
legitimate claim” for persecution based on past evasion of
military service, he now does. Agonafer, 859 F.3d at 1204(cleaned up).
III
We next consider Ayanian’s request not to rule on his
petition for rehearing until he successfully adjusts his status
to that of a lawful permanent resident. We previously denied
Ayanian’s second motion for a stay of appellate proceedings,
and the parties do not request administrative closure. See
Sarkar, 39 F.4th at 617. Therefore, the only request before
us is a request to transfer this appeal to mediation until the
DHS issues a stay of removal or adjudicates Ayanian’s
application for lawful permanent residency. In order to
evaluate the scope of Ayanian’s request that his case be held
in abeyance pending a favorable ruling on his application for
adjustment of status, it is necessary to understand the
adjustment-of-status process and its time frame.
A
Adjustment of status is the process whereby aliens
already in the United States seek to change their immigration
status from non-immigrant (such as a student or temporary
worker) to lawful permanent resident. See Scialabba v.
AYANIAN V. GARLAND 15
Cuellar de Osorio, 573 U.S. 41, 46 n.1 (2014). 3
“Adjustment of status is an extraordinary remedy to be
granted only in meritorious cases.” Kim v. Meese, 810 F.2d
1494, 1498 (9th Cir. 1987). Aliens who complete this
process become lawful permanent residents, which allows
them to live and work permanently in the United States. See
Barton v. Barr, 140 S. Ct. 1442, 1445 (2020).
Becoming a lawful permanent resident is a multi-step
undertaking. Before an alien can even apply for adjustment
of status, the alien must complete the difficult and lengthy
process of obtaining a visa number. See Zerezghi v. USCIS,
955 F.3d 802, 804 (9th Cir. 2020) (“To say that the [visa]
process is complicated would be an understatement.”).
Congress has imposed numerical limits on categories of
aliens who may be admitted into the United States for
permanent residence. See 8 U.S.C. § 1151(a). These
categories include specified “immediate relatives” of U.S.
citizens, to whom “[v]isas are always immediately
available,” Tovar v. Sessions, 882 F.3d 895, 897 (9th Cir.
2018), as well as five other family-preference categories for
3
Aliens located outside of the United States must “apply for a[n]
[immigrant] visa by submitting the required documents and appearing at
a United States Embassy or consulate for an interview with a consular
officer.” Kerry v. Din, 576 U.S. 86, 89 (2015) (plurality) (citing 8 U.S.C.
§§ 1201(a)(1), 1202). “An alien already in the United States—for
example, on a student or temporary worker visa—must obtain
‘adjustment of status’ rather than an immigrant visa to become a lawful
permanent resident.” Scialabba, 573 U.S. at 46 n.1; see also Choe v.
INS, 11 F.3d 925, 928 (9th Cir. 1993). “[T]he criteria for securing
adjustment of status and obtaining an immigrant visa are materially
identical,” and the Supreme Court uses “the single term ‘immigrant visa’
to refer to both.” Scialabba, 573 U.S. at 46 n.1.
16 AYANIAN V. GARLAND
which visas are more limited, see 8 U.S.C. §§ 1151(a)(1),
1153(a)(1)-(4); see also Scialabba, 573 U.S. at 46–47.
If the alien seeking lawful-permanent-resident status is
not in the category of “immediate relative,” but falls into one
of the five family-preference categories, a sponsoring U.S.
citizen or lawful permanent resident must first file an I-130
petition on behalf of the applying alien. See 8 U.S.C. §§
1154(a)(1)(A)(i), (a)(1)(B)(i)(I); 8 C.F.R. § 204.1(a)(1).
USCIS reviews the I-130 visa petition, and, “[a]fter an
investigation of the facts in each case . . . shall . . . approve
the petition[,]” if it is determined “that the facts stated in the
petition are true” and “that the alien in behalf of whom the
petition is made . . . is eligible for preference under” § 1153.
8 U.S.C. § 1154(b); see also Ching v. Mayorkas, 725 F.3d
1149, 1155 (9th Cir. 2013) (“The decision of whether to
approve an I-130 visa petition is a nondiscretionary one . . .
.”).
Filing this form merely gives the applicant “a place in
line” to wait for a visa number to be available in the
applicant’s family-preference category. Scialabba, 573 U.S.
at 47. Because the number of visas that can be issued each
year in each of the five family-preference categories is
limited by statute based on the prospective immigrant’s
country of origin and category, see 8 U.S.C. §§ 1151(c),
1152(a)(2), 1153(a)(1)-(4), “and demand regularly exceeds
supply,” Scialabba, 573 U.S. at 48, the applicant is placed in
a line with others in the same category in order of “priority
date,” meaning the date the relative filed the I-130 petition
with USCIS, see 8 U.S.C. § 1153(e)(1), 8 C.F.R. § 204.1(b);
see also Tovar, 882 F.3d at 897. Each month, the
Department of State estimates how many visas can be made
available, see Zixiang Li v. Kerry, 710 F.3d 995, 997 (9th
Cir. 2013), and “sets a cut-off date for each family
AYANIAN V. GARLAND 17
preference category,” Scialabba, 573 U.S. at 48 (citing 8
C.F.R. § 245.1(g)(1); 22 C.F.R. § 42.51(b)). For example,
in January 2020, the Department of State estimated that there
would be visa numbers available for all the Chinese-born
applicants in a particular family-preference category whose
I-130 petitions were filed on or before July 15, 2008. 4 “The
system is thus first-come, first-served within each preference
category, with visas becoming available in order of priority
date.” Id. “After a sponsoring petition is approved but
before a visa application can be filed, a family-sponsored
immigrant may stand in line for years—or even decades—
just waiting for an immigrant visa to become available.” Id.
at 50.
Only after a visa number becomes available for an
eligible family-preference applicant may the applicant file
an application for adjustment of status (Form I-485,
Application to Register Permanent Residence or Adjust
Status), pursuant to 8 U.S.C. § 1255. See Zixiang Li, 710
F.3d at 997; see also 8 C.F.R. § 245.2. This I-485
application “requires an alien to demonstrate in various ways
her admissibility to the United States.” Scialabba, 573 U.S.
at 48–49; see also 8 U.S.C. § 1182, 8 C.F.R. § 245.1(b), (c)
(listing statutory bars to admissibility). The process includes
a medical examination, 8 C.F.R. § 245.5, and an interview,
8 C.F.R. § 245.6. Estimated processing times for family-
based I-485 applications at various USCIS California field
4
See State Department Visa Bulletin for January 2020, 37 Dept. of State
Publication 9514, https://travel.state.gov/content/travel/en/legal/visa-
law0/visa-bulletin/2020/visa-bulletin-for-january-2020.html.
18 AYANIAN V. GARLAND
offices range from 13 to 23.5 months. USCIS, Check Case
Processing Times, https://egov.uscis.gov/processing-times/. 5
A pending application for adjustment of status “does not
confer lawful immigration status on an applicant,” 7 USCIS-
PM B.3(E), and an alien therefore “may be subject to
removal proceedings unless and until the . . . adjustment
application . . . is approved,” id.; see also United States v.
Latu, 479 F.3d 1153, 1155 (9th Cir. 2007) (holding that a
“pending I-485 application for adjustment of status d[oes]
not affect . . . removability”).
Unlike the “nondiscretionary” decision whether to grant
an I-130 visa petition, Ching, 725 F.3d at 1155, the USCIS’s
“decision to grant an adjustment of status is purely
discretionary,” Kim, 810 F.2d at 1497. Therefore, even if the
alien has satisfied the statutory requirements for adjustment
of status, the Attorney General or USCIS may ultimately
deny the alien’s I-485 application after review. See 8 U.S.C.
§ 1255(a); see also Agyeman v. INS, 296 F.3d 871, 879 (9th
Cir. 2002); Vasquez de Alcantar v. Holder, 645 F.3d 1097,
1102 (9th Cir. 2011).
B
The foregoing framework sheds light on the time frame
for Ayanian’s efforts to adjust his status to that of lawful
permanent resident. Ayanian’s mother and sister, both of
whom are American citizens, submitted I-130 petitions on
his behalf on June 22, 2007. USCIS subsequently approved
these petitions. At the time of oral argument, the Department
5
Aliens may request that USCIS expedite the adjudication of their
applications, which are granted in limited circumstances. 1 USCIS-PM
A.5. Ayanian has not indicated that he has made such a request.
AYANIAN V. GARLAND 19
of State had not yet made a visa number available for
Ayanian, because his priority date of June 22, 2007 was not
yet current.
As of November 2022, a visa is available to family-
preference applicants with a priority date of December 15,
2007 or earlier. 6 This allows Ayanian to submit an I-485
application for adjustment of status. USCIS must then
process the application, a process estimated to take between
13 and 23.5 months, to determine whether Ayanian has met
the various statutory and regulatory requirements for
adjustment of status and whether the application should be
granted as a matter of discretion. Accordingly, while it is
not known exactly when (or whether) Ayanian will be
granted lawful permanent resident status, the process will
likely last for at least another year, and potentially much
longer.
Accordingly, Ayanian is not requesting a mere brief stay
of proceedings to give the government time to implement a
decision it has already made. Rather, Ayanian must wait an
indeterminate amount of time before his adjustment-of-
status application is resolved, and there is no guarantee that
it will be resolved in his favor.
C
Having determined the merits of Ayanian’s petition for
review and the present state of affairs of his efforts to adjust
his status, we now consider the request to refer this case to
the Ninth Circuit’s mediation program.
6
See State Department Visa Bulletin for November 2022, 71 Dept. of
State Publication 9514, https://travel.state.gov/content/travel/en/legal/vi
sa-law0/visa-bulletin/2023/visa-bulletin-for-november-2022.html.
20 AYANIAN V. GARLAND
We begin by considering whether Ayanian’s petition for
review of the BIA’s denial of his motion to reopen is the type
of dispute appropriate for mediation. The purpose of the
Ninth Circuit’s mediation program is “to facilitate the
voluntary resolution of appeals in order to reduce the court’s
workload and to offer parties an alternative to litigation to
resolve their disputes.” Ninth Circuit General Order 7.1.
“Mediation, as that term is commonly understood, is a
method of nonbinding dispute resolution involving a neutral
third party who tries to help the disputing parties reach a
mutually agreeable solution” of their dispute. Advanced
Bodycare Sols., LLC v. Thione Int’l, Inc., 524 F.3d 1235,
1240 (11th Cir. 2008) (citations and quotation marks
omitted). The mediator will “facilitate negotiations among
the parties to help them reach a mutually acceptable
resolution,” Ninth Circuit, The Mediation Process, 7 and “in
all cases . . . help[] the parties to define the issues, to
overcome barriers to communication, and to explore
alternative methods of resolving their dispute,” Jay E.
Grenig, 1 Alt. Disp. Resol. § 4.1 (4th ed. 2016). Mediation
is particularly appropriate in: (1) cases “in which the parties
have a continuing relationship that they wish to preserve”;
(2) “[c]ases in which the dispute is caused by poor
communication between the parties”; or (3) “[c]omplex
cases requiring creative solutions.” Grenig, 1 Alt. Disp.
Resol. § 4.1.
Ayanian’s petition for review is not the sort of dispute
that is appropriate for mediation. 8 Ayanian concedes that
7
https://www.ca9.uscourts.gov/mediation/the-mediation-process.
8
The dissent suggests that mediation might be useful for “bringing
parties to the table,” and quotes government counsel’s statement that
AYANIAN V. GARLAND 21
the dispute involving his claim that the BIA erred in
resolving his second motion to reopen lacks merit.
Accordingly, Ayanian is not seeking (and does not need) a
creative solution to his claims, nor does he require a
mediator to assist in preserving the parties’ relationship or to
overcome poor communications. The parties have not
indicated that transferring this matter to mediation will
advance Ayanian’s adjustment-of status process. Nor have
the parties suggested how a mediator’s assistance in
negotiating, defining the relevant issues, or exploring
alternatives would assist Ayanian in achieving his goal.
Rather, it appears the parties view mediation as a device
for putting Ayanian’s dispute into a holding pattern. Indeed,
the parties have not disguised the fact that the objective of
transferring this matter to mediation is to delay Ayanian’s
removal from the country until the government has agreed to
provide discretionary relief, whether in the form of a stay of
removal or the approval of his application for lawful
permanent residency. Such use of mediation would not
serve “the strong judicial policy that favors settlements of
disputes,” Guerrero v. RJM Acquisitions LLC, 499 F.3d 926,
939 (9th Cir. 2007) (cleaned up), but would instead involve
staying the case for an indeterminate period of time, thus
letting it linger on our docket, “asleep but not dead,” Sarkar,
39 F.4th at 618. It is an abuse of our mediation process to
use it for a purpose unrelated to resolving disputes and as a
mediation might give her “a little bit more push” with DHS. Dissent 27.
But neither the dissent nor government counsel explain why mediation
would compel the government to offer Ayanian speedier relief when the
scheduled oral argument before the Ninth Circuit—after full briefing on
Ayanian’s petition for review—did not.
22 AYANIAN V. GARLAND
substitute for the issuance of a stay. Therefore, the request
to stay this case by transferring it to mediation is denied. 9
D
Although we decline to use judicial procedures such as
mediation to displace the government’s authority over
enforcement actions in immigration proceedings, Ayanian is
not without other avenues for relief. The “Government has
numerous means to avoid enforcement against [Ayanian] if
that is what it wants,” Sarkar, 39 F.4th at 621, including
many “specific procedural tools” to hold Ayanian’s case in
abeyance, if it is inclined to do so, id. at 620. These tools
include remanding the matter to the BIA, moving to reopen
proceedings with the BIA or to dismiss the proceedings,
requesting a continuance from the BIA, or simply deciding
not to execute Ayanian’s final order of removal. See id at
620. Because “the government is always in control of an
alien’s removal,” id. at 619, the government may exercise its
“enforcement prerogative” as it sees fit, id. at 621. 10
9
The dissent’s remark that Ayanian’s “plea [for mercy] may have been
more warmly received by other panels of our court,” Dissent 29 n.6,
reflects the reality that judges may be moved by sympathy to tinker with
law and procedure to achieve a charitable result. But doing so diminishes
the crucial role we play in our federal system, which is to apply the laws
“implementing Congress’s policy judgments, with fidelity to those
judgments,” Bank Markazi v. Peterson, 578 U.S. 212, 232 (2016), and
refrain from enforcing our own sense of equity.
10
On appeal, Ayanian seeks “the remedy of prosecutorial discretion.”
We lack jurisdiction to review this contention under 8 U.S.C. § 1252(g),
which “bar[s] review of discretionary, quasi-prosecutorial decisions”
made during removal proceedings. Vilchiz-Soto v. Holder, 688 F.3d 642,
AYANIAN V. GARLAND 23
But such enforcement decisions are the prerogative of
the Executive Branch, not the judiciary. An “agency’s
decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an
agency’s absolute discretion,” Heckler v. Chaney, 470 U.S.
821, 831 (1985), and this is “especially true in the
immigration context, where the Supreme Court has
recognized that ‘the Attorney General’s discrete acts of
commenc[ing] proceedings, adjudicat[ing] cases, [and]
execut[ing] removal orders’ are exercises in prosecutorial
discretion,” Sarkar, 39 F.4th at 619 (quoting Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999)
(alterations in original)). Indeed, the Supreme Court has
long recognized “the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977);
see also East Bay Sanctuary Covenant v. Trump, 932 F.3d
742, 756 (9th Cir. 2018). We are “acutely aware of the crisis
in the enforcement of our immigration laws,” and we have
observed that “[t]he burden of dealing with these issues has
fallen disproportionately on the courts of our circuit.” East
Bay Sanctuary Covenant, 932 F.3d at 774. But “as much as
we might be tempted to revise the law as we think wise,
revision of the laws is left with the branch that enacted the
laws in the first place—Congress.” Id. at 774–75. The
judiciary does not have authority to “displace congressional
choices of policy,” Landon v. Plasencia, 459 U.S. 21, 35
(1982), nor to circumvent the Executive’s role by effectively
staying Ayanian’s removal, as “[t]he exclusion of aliens . . .
644 (9th Cir. 2012) (citing Barahona-Gomez v. Reno, 236 F.3d 1115,
1120–21 (9th Cir. 2001)).
24 AYANIAN V. GARLAND
is inherent in the executive power to control the foreign
affairs of the nation,” U.S. ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542 (1950). In this case, we have fulfilled our
judicial role by upholding the BIA’s denial of Ayanian’s
second motion to reopen after review. The Executive
Branch now has full and exclusive authority to determine
whether to allow Ayanian to stay in this country pending
resolution of his application for adjustment of status.
PETITION DENIED.
WARDLAW, Circuit Judge, concurring in part and
dissenting in part:
I concur with the majority’s reasoning and conclusion on
the merits of Ayanian’s second motion to reopen. Ayanian’s
second motion is time- and number-barred, and he offers no
evidence of changed country conditions to escape the bar.
Indeed, he offers us no evidence new or different from that
supporting his first motion to reopen. However, I
respectfully dissent from the majority’s denial of the parties’
joint request to refer this case to mediation.
As to the narrow issue before us, the majority is correct
to conclude that the BIA did not abuse its discretion in
denying Ayanian’s second motion to reopen. But Ayanian
is properly before our court on his petition for review, and
though he may lack a meritorious asylum claim—as his
counsel unfortunately appears to concede—Ayanian has
other forms of immigration relief available.
In view of this pending relief, at oral argument, the
parties submitted a joint request to refer this petition to the
AYANIAN V. GARLAND 25
Ninth Circuit Mediation Unit. We should have granted this
motion. Mediation is an effective tool to fully, fairly, and
efficiently resolve certain immigration cases presented to
our court. We should not be reticent in a proper case to use
it—especially when the government itself joins in such a
request.
I.
It is well known that our nation’s immigration system is
broken. It is calcified by decades of Congressional inaction,
destabilized by dramatic shifts in enforcement policies, and
currently burdened by COVID-19-induced processing
backlogs. Congress’s repeated failures to update our
immigration laws leave noncitizens, advocates, and
Executive Branch officials in an untenable position, forced
to work around systematic pitfalls in this fractured system.
Ayanian’s proceedings are a case in point. Congress—
not the Executive Branch—caps the number of immigrant
visas that can be issued each year. 8 U.S.C. § 1153. The
State Department issues such visas and forecasts future
priority dates. Once USCIS determines that a visa is
available, the agency processes adjustment of status
applications for noncitizens seeking lawful permanent
resident status in our country. See generally Maj. Op. 15–
18. Ayanian’s U.S. citizen family members submitted visa
petitions on his behalf more than 15 years ago, in June 2007. 1
1
While Ayanian’s priority date does not appear to be stated in the record,
government counsel indicated that the petitioner’s priority date is in June
2007. See Oral Argument at 3:59–4:02, Ayanian v. Garland (No. 16-
70809), https://www.ca9.uscourts.gov/media/video/?20220919/
16-70809/ (DOJ Counsel: “I think [Ayanian] has a June ’07 priority
date.”); id. at 8:23–8:30 (DOJ Counsel: “[Ayanian’s] priority date is
26 AYANIAN V. GARLAND
Since that time, Ayanian has dutifully waited in line and
neither engaged in nor been convicted of any conduct that
would render him inadmissible.
At this juncture, there is nothing the parties can do to
expedite issuance of a green card or guarantee that Ayanian
will ultimately be granted lawful permanent resident status.
Even though Ayanian is finally within striking distance of a
green card, his case, like those of the millions of noncitizens
backlogged in our immigration courts or seeking relief
before USCIS, is snarled in bureaucratic proceedings
through no fault of his own. Ayanian is waiting for our
immigration system to catch up with him.
II.
At oral argument, the parties jointly requested referral to
the Ninth Circuit Mediation Unit. This unit is staffed by
diligent, creative professionals who can help Ayanian and
the government amicably resolve this dispute without
expending additional judicial time and resources. The panel
majority denies the parties’ joint request for this limited
procedural remedy, reasoning that it is an “abuse of our
mediation process to use it for a purpose unrelated to
resolving disputes and as a substitute for the issuance of a
stay.” Maj. Op. 21–22.
This case did not present a master class in lawyering. 2
Like the majority, I disagree with petitioner’s counsel’s
June 22 of ‘07. So as soon as [the State Department] gets to June, he
will qualify to adjust.”).
2
I share the majority’s incredulity at petitioner’s counsel’s concession at
oral argument that she lacked an argument on the merits. Maj. Op. 11 &
n.2. I am equally perplexed by the inability of the Departments of Justice
and Homeland Security to confer prior to argument before our panel. In
AYANIAN V. GARLAND 27
inartful description of the purpose of mediation which is not,
of course, to “let [a] case trail until in fact [a petitioner] can
get a green card[.]” 3 The majority cites treatises and website
descriptions which accurately set forth the purposes of
mediation and alternative dispute resolution. Maj. Op. 20.
The Ninth Circuit Mediation Unit clearly adheres to those
tenets, as evidenced by its remarkable track record of
efficiently resolving both cases referred by panels of our
court, and immigration cases in particular. 4
But the majority’s retreat into rigid formalism ignores
mediation’s most basic function: bringing parties to the
table. See generally 1 Alan Alhadeff, Alt. Disp. Resol.
Practice Guide § 23:6 (2021) (describing format of
mediation sessions, including joint opening session, “shuttle
diplomacy moving from private caucus to private caucus,”
and “subsequent joint sessions with all counsel present”). As
government counsel noted at oral argument, referral to
mediation would give her—a Department of Justice
attorney—“a little bit more push” with her client, the
view of the parties’ amenability to resolving this case before argument,
the government’s failure to agree on a proposed course of action, such
as an exercise of prosecutorial discretion, results in an unfortunate waste
of judicial resources.
3
Counsel for Ayanian: “ . . . I would fall on the mercy of the court and
let this case trail until he can get a green card, rather than litigate the
merits of the case.” Oral Argument at 10:04–10:14, Ayanian v. Garland
(No. 16-70809), https://www.ca9.uscourts.gov/media/video/?20220919/
16-70809/
4
In 2022, the mediation unit received 67 panel referrals and resolved 49
such referrals—a resolution rate of more than 73%. In January 2022, the
mediation unit had 253 pending immigration cases. By November 2022,
that number dropped significantly, to 68—coincidentally, also a more
than 73% reduction.
28 AYANIAN V. GARLAND
Department of Homeland Security (DHS). 5 Only DHS may
determine whether Ayanian remains an enforcement priority
and whether the agency should continue pursuing his
removal. A referral to mediation—and a regular cadence of
mediation conferences—will prompt DHS to review
Ayanian’s case and determine whether the parties can agree
to any immediate relief. Regardless of how counsel view the
purposes of mediation, our able mediators are more than
capable of ensuring that the parties operate in good faith.
It is doubtlessly true that the Executive Branch has many
tools to resolve this dispute without our intervention. Maj.
Op. 22. (noting that the government could move to remand,
reopen, dismiss, or continue removal proceedings, or decline
to execute Ayanian’s removal order). At this stage of
appellate review, the judiciary’s tools are comparatively
limited and blunt. In view of this disparity, the panel
majority’s decision to send this case back to the agencies and
keep its hands clean is understandable. Id. (“Although we
decline to use judicial procedures such as mediation to
displace the government’s authority over enforcement
actions in immigration proceedings, Ayanian is not without
other avenues for relief.”).
The Executive Branch may be better placed to tailor
relief to the particulars of Ayanian’s case. But the parties do
not ask us for extraordinary relief. They jointly request a
modest procedural remedy unquestionably within the
5
DOJ Counsel: “[I]f the court is amenable to [granting the parties’ joint
request for referral to mediation], that gives me a little bit more push with
DHS, it really does. It allows me to basically to get them to kind of like
move their feet a little faster[.]” Oral Argument at 7:11–7:20, Ayanian
v. Garland (No. 16-70809), https://www.ca9.uscourts.gov/media/video/
?20220919/16-70809/.
AYANIAN V. GARLAND 29
judicial ken. We readily could have issued a one-line order
granting the joint request for mediation. Such an order
would have saved us from preparing dueling majority and
dissenting opinions, in view of the clear fact that Ayanian
has relief available. The majority’s denial of the parties’
joint request results in a highly inefficient use of government
resources.
Finally, the majority balks at Ayanian’s counsel’s plea
for our court’s “mercy.” 6 Counsel’s request may not sound
in the formal register of an appellate brief. But it calls to
mind Justice Blackmun’s precept that “compassion need not
be exiled from the province of judging.” DeShaney v.
Winnebago County Dept. of Social Services, 489 U.S. 189,
213 (1989) (Blackmun, J., dissenting).
For the large majority of noncitizens petitioning for
review of their cases, two or three judges of our court have
the last word. They decide whether a family remains intact,
whether a noncitizen student completes her studies, or
whether loved ones are exiled to a country they no longer
call home. Faced with the extraordinary sanction of
removal, boxed in by a broken immigration system,
counsel’s request for any remedy available under law is not
unreasonable. Our court should remain open to using any
judicially available procedural tools—including referrals to
mediation, stays of appellate proceedings, or administrative
closure—to see justice in each case. I would grant the
6
See supra note 2. This plea may have been more warmly received by
other panels of our court. But even so, I would recommend that future
litigants make legal arguments instead of pleas for mercy before the
federal courts.
30 AYANIAN V. GARLAND
parties’ joint request for referral to our mediation unit and let
the mediators do their job.