Martin Sarksian v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN SARKSIAN, No. 17-70276
Petitioner, Agency No. A078-528-835
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2022**
Pasadena, California
Before: BRESS and BUMATAY, Circuit Judges, and GLEASON,*** District
Judge.
Martin Sarksian petitions for review of the Board of Immigration Appeals’
(“BIA”) decision denying his motion to reopen removal proceedings. Sarksian made
*
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 Sharon L. Gleason, Chief United States District Judge
for the District of Alaska, sitting by designation.
an untimely motion to reopen based on allegedly changed country conditions in
Armenia. We review the denial of an untimely motion to reopen for abuse of
discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. The BIA did not abuse its discretion in denying Sarksian’s untimely
motion to reopen. An untimely motion to reopen may be allowed if it is “based on
changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)
(quoting Azanor v. Ashcroft, 364 F.3d 1013, 1021–1022 (9th Cir. 2004)). To satisfy
the changed country conditions exception, the petitioner must “clear four hurdles”:
(1) he ha[s] to produce evidence that conditions ha[ve] changed in [his
country of origin]; (2) the evidence ha[s] to be “material;” (3) the
evidence must not have been available and would not have been
discovered or presented at the previous proceeding; and (4) he ha[s] to
“demonstrate that 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) (quoting Bhasin v. Gonzales,
423 F.3d 977, 984 (9th Cir. 2005)).
Here, Sarksian brought forward multiple forms of evidence that he claims
show changed country conditions: (1) his own testimony, (2) media articles or expert
reports describing the conflict between Armenia and Azerbaijan, and (3) State
Department 2015 country reports on Armenia and Azerbaijan. But Sarksian’s
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testimony concerned events that happened in the 1990s—the evidence that was
actually used and considered at his initial asylum hearing. Thus, that evidence
cannot demonstrate changed country conditions or satisfy the requirement that it was
previously unavailable. See 8 C.F.R. § 1003.2(c)(3)(ii). Sarksian also states that he
fears arrest and disproportionate punishment on account of his Azeri ethnicity for
evading military service. But Sarksian offers no evidence to demonstrate that the
Armenian government disproportionately punishes Azeris for this crime. Indeed,
we have long made clear that “[a]lthough the BIA must accept the truth of the facts
asserted in an alien’s affidavit, the affidavits must be based on specific facts, not
mere conclusions.” Agustin v. INS, 700 F.2d 564, 565 (9th Cir. 1983) (per curiam)
(citation omitted).
The media reports also do not amount to material evidence. Three of the
articles concern violence and displacement in Azerbaijan, not Armenia, and another
article describes the torture of Azeri nationals by Armenia during the so-called
“Bloody War” between the countries, which took place in the late 1980s. None of
this evidence demonstrates changed country conditions reflecting that non-
combatant, ethnic Azeris, like Sarksian, are currently tortured or killed in Armenia.
Lastly, the State Department reports concerning Armenia and Azerbaijan do
not show material evidence of changed country conditions. Sarksian primarily relies
on the 2015 Country Report on Human Right Practices for Armenia, which
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described brutal police tactics used in arresting and interrogating citizens, poor
prison conditions, and a failure of the legal system to provide fair trials. But the
country report does not raise a concern for the persecution of Azeris in Armenia.
As a result, the BIA did not abuse its discretion in finding that Sarksian’s
evidence was not sufficiently material to justify reopening under 8 C.F.R. §
1003.2(c)(3)(ii). See Najmabadi, 597 F.3d at 989.
2. Nor did the BIA abuse its discretion in determining that Sarksian’s new
evidence would not entitle him to relief. Similarly to the materiality requirement,
establishing a well-founded fear of future persecution requires that “the alien show
that he faces a particularized threat of persecution.” See Kotasz v. INS, 31 F.3d 847,
851–852 (9th Cir. 1994) (emphasis added). A “petitioner cannot simply prove that
there exists a generalized or random possibility of persecution in his native country;
he must show that he is at particular risk.” Id. at 852. Thus, for the same reasons
the BIA did not abuse its discretion in finding that Sarksian’s evidence did not satisfy
the materiality requirement, the BIA did not abuse its discretion in concluding that
Sarksian failed to provide individualized evidence to demonstrate a well-founded
fear of persecution. See id.DENIED.
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