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NOT FOR PUBLICATION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. 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 suggests mistreatment of
both draft evaders and military conscripts, see also Muradin v. Gonzalez,
(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 either a draft evader or a conscript. See Go v. Holder,
(9th Cir. 2014). Moreover, Ayanian failed to show that the Armenian
1
We also GRANT the government’s motion to strike the portions of
Ayanian’s brief that rely on the 2010 U.S. State Department Report, which is not
part of the Certified Administrative Record. See
(b)(4)(A) (“[T]he
court of appeals shall decide the petition only on the administrative record . . . .”).
2
government would acquiesce to any alleged future torture at the hands of money
lenders.
2. We lack jurisdiction to consider Ayanian’s remaining arguments because
he did not raise them before the BIA.
(9th Cir. 2003) (“Before a petitioner can raise an
argument on appeal, the petitioner must first raise the issue before the BIA or IJ.”).
We also cannot address Ayanian’s concerns with the adjudication of his original
applications for asylum, withholding of removal, and CAT relief because that case
is already final, see Ayanian v. Gonzales,
165 F. App’x 520
(9th Cir. 2006), and
only the denial of his motion to reopen is properly before us.
PETITION DENIED IN PART, DISMISSED IN PART.
3
Ayanian v. Lynch, No. 11-70332 FILED
PREGERSON, Circuit Judge, dissenting: SEP 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would grant the petition.
1
