Martun Derbinyants v. William Barr

FILED
NOT FOR PUBLICATION
JUL 23 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTUN DERBINYANTS, AKA Martin Nos. 16-74035
Darbinyan, AKA Martun Darbinyan; 17-72596
ZARIK DERBINYANTS, AKA Zarmoui
Karagezian, AKA Zarmuhi Karagyozyan, Agency Nos. A075-686-114
A075-686-116
Petitioners,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Concurrence by Judge GRABER
*
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).
Martun Derbinyants (a.k.a. Martin Darbinyan) and Zarik Derbinyants (a.k.a.
Zarmuhi Karagyozyan) (“Petitioners”) seek review of the Board of Immigration
Appeals’ (“BIA”) 2016 decision affirming the Immigration Judge’s (“IJ”) order of
removal for having filed a frivolous asylum application and of the BIA’s 2017
decision denying their motion to reopen for ineffective assistance of counsel. We
dismiss and deny their petitions, respectively.
With respect to the order of removal, Petitioners contend only that they were
never warned of the consequences of filing a frivolous asylum application. See Matter
of Y-L-, 24 I&N Dec. 151, 155 (BIA 2007) (setting forth requirements for finding of
frivolous asylum application). However, this issue was not raised before the BIA, and
thus has not been exhausted. As such, we lack jurisdiction to review this claim and
dismiss the petition in appeal No. 16-74035. See Ahir v. Mukasey, 527 F.3d 912,
917–18 (9th Cir. 2008).
The BIA did not abuse its discretion in denying Petitioners’ motion to reopen.
Petitioners failed to satisfy the procedural requirements for an ineffective assistance
of counsel claim set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), because
they never filed a bar complaint with the appropriate disciplinary authorities nor
reasonably explained their failure to do so. Id. at 639. Furthermore, as the BIA also
noted, Petitioners have failed to demonstrate prejudice resulting from their prior
2
counsel’s alleged ineffectiveness, as their allegations do not seriously undermine the
determinations in the removal proceeding regarding the frivolous warning or the
frivolousness of the application itself. See Martinez-Hernandez v. Holder, 778 F.3d
1086, 1088 (9th Cir. 2015) (per curiam). We deny their petition in appeal No. 17-
72596.
DISMISSED IN PART; DENIED IN PART.
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FILED
Derbinyants v. Barr; 16-74035, 17-72596
JUL 23 2020
GRABER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur but would address the merits of Petitioners’ argument that they were
never warned of the consequences of filing a frivolous asylum application. In my
view, although Petitioners did not raise that issue before the BIA, the BIA’s final
order is better read to have decided it. In a footnote, the BIA stated:
We note there is no dispute that the respondent was
provided notice of the consequence of filing a frivolous
asylum application, and the Immigration Judge complied
with the other procedural requirements outlined in Matter
of Y-L-, 24 I&N Dec. 151, 157–58 (BIA 2007), for
satisfying a finding of frivolousness (I.J. at 5-7).
We thus have jurisdiction to review the claim. Parada v. Sessions, 902 F.3d 901,
914 (9th Cir. 2018). Nevertheless, I would conclude that substantial evidence
supports the agency’s conclusion that Petitioners had sufficient notice. See
Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013) (per curiam) (stating
standard). Written notice is adequate even where an applicant has limited English
proficiency or claims error by the translator. Id.; Cheema v. Holder, 693 F.3d
1045, 1049 (9th Cir. 2012). Here, the asylum applications and declaration that
Petitioner Martun Derbinyants signed included written warnings of the
consequences, and the interpreter credibly testified that she translated the warnings.