Nshan Ayanian v. Loretta E. Lynch

FILED

NOT FOR PUBLICATION

SEP 16 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NSHAN AYANIAN, No. 11-70332

Petitioner, Agency No. A077-310-327

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 9, 2015** Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges and CARR,*** Senior District Judge.

Petitioner Nshan Ayanian petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his motion to reopen. We deny the petition.

* 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). *** The Honorable James G. Carr, Senior District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. 1. The BIA did not abuse its discretion in denying Ayanian’s untimely

motion to reopen his removal proceedings.…

MEMORANDUM ***

Petitioner Nshan Ayanian petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. We deny the petition.

1. The BIA did not abuse its discretion in denying Ayanian’s untimely motion to reopen his removal proceedings. In order to merit reopening under the changed circumstances exception to the filing deadline for motions to reopen, Ayanian bore the burden of showing that his evidence of changed country conditions “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)(i)-(ii); 8 C.F.R. § 1003.2 (c)(3)(ii). The BIA acted within its discretion when concluding that the evidence Ayanian presented to support his motion is immaterial to his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). 1 While Ayanian’s evidence sug *322 gests mistreatment of both draft evaders and military conscripts, see also Muradin v. Gonzales, 494 F.3d 1208 (9th Cir.2007), 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…

dissenting:

I would grant the petition.