FILED
NOT FOR PUBLICATION NOV 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIHRAN SMBATYAN, No. 12-72458
Petitioner, Agency No. A096-362-836
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2015**
Pasadena, California
Before: FARRIS, TASHIMA, and BYBEE, Circuit Judges.
Mihran Smbatyan petitions for review of the Board of Immigration Appeals’
denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We
review the B.I.A.’s denial of a motion to reopen for abuse of discretion. See
*
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).
Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition
for review.
The B.I.A. correctly denied Smbatyan’s ineffective assistance of counsel
claim. It was untimely and Smbatayn failed to show prejudice. See 8 C.F.R.
§ 1003.2(c)(2) (motions to reopen must be made within ninety days); Mohammed,
400 F.3d at 793 (ineffective assistance of counsel claims require deficient conduct
and prejudice).
Smbatyan filed his motion to reopen six years too late. He was not entitled
to equitable tolling where: (1) he did not consult another immigration lawyer about
his case; (2) he only found out about the possibility of a motion to reopen by
chance; and (3) he waited an undisclosed length of time, even after discovering the
possibility of reopening his case, in order to gather funds to pay a lawyer.
Smbatyan also failed to show that the outcome of his immigration case
might have been different but for his attorney’s ineffectiveness. Smbatyan could
not point to any actual mistakes in the English declarations that he claims his
attorney was ineffective for submitting. Nor could he point to any specific legal
arguments that his attorney failed to raise on appeal. Although Smbatyan claimed
his attorney should have done more on appeal to attack the IJ’s adverse credibility
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determination, the B.I.A. correctly found that such an attack would have been
unsuccessful even if mounted.
The B.I.A. also correctly denied Smbatyan’s motion to reopen based on
changed country conditions. At his removal hearing, Smbatayn himself submitted
substantial evidence of violent anti-gay sentiment in Armenia. Given this, the
B.I.A. did not abuse its discretion in finding that a single article that stated that
hostilities towards gay men had “increased” did not show that conditions in
Armenia had changed since the removal hearing. In addition, the B.I.A. correctly
held that, even if Smbatyan had shown changed country conditions, they could not
be material when Smbatyan was denied relief based on an adverse credibility
determination that would be unaffected by changed conditions in Armenia. See
Feng Gui Lin v. Holder, 588 F.3d 981, 986 (9th Cir. 2009) (changes in country
conditions must be material).
DENIED.
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