FILED
NOT FOR PUBLICATION
OCT 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT MELIKIAN, et al., Nos. 11-70434 & 15-71235
Petitioner, Agency Nos. A078-371-088,
A096-154-743, A096-154-744,
v. A096-154-745
LORETTA E. LYNCH, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 3, 2016**
Pasadena, California
Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,*** District
Judge.
Albert Melikian, a native of Iran and citizen of Armenia, his wife Narine
Ter-Barseghyan, a native and citizen of Armenia, and their children, Arpi
*
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 Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
Melikyan and Arman Melikyan, natives and citizens of Armenia, seek review of
two final orders of the Board of Immigration Appeals (“BIA”).1 The first order
dismissed petitioners’ appeal from the Immigration Judge’s (“IJ”) decision denying
their applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”) on the ground that petitioners had not
provided a credible account of persecution and finding that petitioners had filed
frivolous asylum applications. The second order denied petitioners’ motion to
reopen the administrative proceedings. We have jurisdiction under 8 U.S.C. § 1252
and deny both petitions.2
1. The agency did not abuse its discretion in denying petitioners’ motion
to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). Petitioners
concede that their motion was untimely but argue that the BIA should have applied
equitable tolling to extend the limitations period based on their claim of ineffective
assistance of counsel. Equitable tolling may be appropriate in the context of an
1
The children are named as derivative beneficiaries on their mother’s
application for asylum and withholding of removal. On October 20, 2016, we
granted the government’s unopposed motion to sever Arpi Melikyan and Arman
Melikyan and remand their petitions for review. Accordingly, our disposition here
affects only the claims of Albert Melikian and Nadine Ter-Barseghyan.
2
This case is not governed by the REAL ID Act of 2005, Pub. L. No. 109-13
(2005), because petitioners filed their applications for asylum and withholding of
removal before May 11, 2005.
2
ineffective assistance of counsel claim if the petitioner exercises due diligence to
discover and remedy counsel’s errors. Avagyan v. Holder, 646 F.3d 672, 677 (9th
Cir. 2011). Here, petitioners offer no explanation for why they waited three years
after discovering their ineffective assistance of counsel claim to file their motion to
reopen.
2. Petitioners have not challenged the IJ’s adverse credibility finding.
Accordingly, the issue is waived. See Castro-Perez v. Gonzales, 409 F.3d 1069,
1072 (9th Cir. 2005). The adverse credibility determination disposes of all of
petitioners’ substantive claims. See 8 C.F.R. § 1208.13(a); 8 C.F.R. §
1208.16(c)(2).
3. The agency applied the correct procedural framework when it
determined that petitioners’ asylum petitions were frivolous. See Ahir v. Mukasey,
527 F.3d 912, 917 (9th Cir. 2008). The IJ correctly concluded that petitioners had
notice of the consequences of filing a frivolous application based on the printed
warning on the face of the applications they signed. See Cheema v. Holder, 693
F.3d 1045, 1046 (9th Cir. 2012); 8 C.F.R. § 208.3(c)(2).
The IJ correctly found that petitioners filed a frivolous asylum application,
stating that they “not only knowingly but concededly fabricated incidents of
persecution and submitted fraudulent documents.” (Emphasis in original).
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Substantial evidence supports this finding. Sidhu v. INS, 220 F.3d 1085, 1088 (9th
Cir. 2000). Petitioners admit in declarations filed in their administrative appeal to
providing false testimony and documents before the IJ. The IJ also correctly found
petitioners’ attempt to blame their attorney and others for these and other
fabrications not credible.
4. The IJ did not violate petitioners’ due process rights, either by
refusing to hold a hearing on their ineffective assistance of counsel claim or by
refusing to hold a hearing on their revised claims for relief. To establish a due
process violation, petitioners must show that they were denied a full and fair
hearing on their claims, and that they suffered prejudice as a result. Cruz Rendon v.
Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). The record does not support
petitioners’ argument that the IJ “refused” to hold a hearing on the ineffective
assistance claim.
Petitioners also have not shown that the IJ violated their due process rights
by refusing to consider new evidence and testimony on their revised asylum
claims. The IJ correctly concluded and petitioners do not dispute that an alien
whose original application for asylum is found to be frivolous is barred from
seeking to reopen proceedings. See 8 C.F.R. § 1003.23(b)(4)(i). This finding, along
with the IJ’s well-supported adverse credibility finding on their original claims,
4
eviscerated petitioners’ ability to establish an entitlement to relief on their revised
claims. See Kaur v. Gonzales, 418 F.3d 1061, 1065 (9th Cir. 2005).
PETITIONS FOR REVIEW DENIED.
5