Opinion
20-70434
10-26-2022
LEVON ANDRANIKOVICH KETSOYAN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 21, 2022 San Francisco, California
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A028-135-114
Before: Ronald Lee Gilman, Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges.
MEMORANDUM [*]
Levon Andranikovich Ketsoyan, a native of the former Union of Soviet Socialist Republics, petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings. Ketsoyan seeks to reopen the proceedings in order to apply for protection under the Convention Against Torture (CAT) and for a waiver of inadmissibility. We review the BIA's denial of a motion to reopen under the abuse-of-discretion standard. Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014). "The BIA abuses its discretion when its denial of a motion to reopen is 'arbitrary, irrational or contrary to law.'" Id. (quoting Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004)). We have jurisdiction under 8 U.S.C. § 1252.
Ketsoyan was initially ordered to be removed in November 2001, and this motion to reopen was not filed until September 2019. To be timely, a motion to reopen must generally be filed within 90 days of the BIA's final administrative decision. 8 C.F.R. § 1003.2(c)(2) (2022). Absent some exception, Ketsoyan's motion is without doubt untimely.
But Ketsoyan contends that the applicable exception here is that there is no time limit on the filing of a motion to reopen if it "is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence 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)(ii). To succeed on a motion based on changed country conditions, the movant must:
(1) produce evidence that conditions have changed in the country of removal, (2) demonstrate that the evidence is material, (3) show that the evidence was not available and would not have been discovered or presented at the previous hearing, and (4) demonstrate that the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought.Silva v. Garland, 993 F.3d 705, 718 (9th Cir. 2021).
Ketsoyan has failed to satisfy the above requirements because the only evidence that he presented were two generalized country reports that he believes document the prevalence of violence and torture in Armenia. But he does not explain how those reports establish either "that the average [Armenian resident] . . . faces a greater-than-fifty-percent chance of being tortured" or, alternatively, that he himself "faces any particularized risk of torture . . . higher than that faced by all [Armenian residents]." See Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir. 2022). Ketsoyan thus failed to make the necessary prima facie showing of eligibility, which for the CAT requires a petitioner to demonstrate that "there is a reasonable likelihood that []he will be able to show that it is more likely than not []he will be tortured" by or with the consent of the government in the country of removal. See Kaur v. Garland, 2 F.4th 823, 837 (9th Cir. 2021).
In addition, Ketsoyan makes no effort to explain any relevant change in conditions in Armenia, which is fatal to his claim for relief under the changed-country-conditions exception. See Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016) ("The 'critical question is . . . whether circumstances have changed sufficiently' in the country since the prior hearing so that the petitioner now has a legitimate claim for asylum." (quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004))).
Nor did Ketsoyan make a prima facie showing that he is eligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h), commonly known as a "§ 212(h) waiver." The Attorney General has issued a regulation providing that an application for adjustment of status "shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the [Immigration and Nationality] Act, as they relate to the inadmissibility of an alien in the United States." 8 C.F.R. § 1245.1(f) (2022). And this court has upheld that regulation. Mtoched v. Lynch, 786 F.3d 1210, 1218 (9th Cir. 2015) (upholding the BIA's interpretation that "a § 212(h) waiver for an alien within the United States is available only in connection with an application for adjustment of status, even for someone who is not eligible to apply for adjustment of status").
Ketsoyan has been within the United States at all relevant times, so he had to file a concurrent application for adjustment of status alongside his application for a § 212(h) waiver. See id. But in order to be eligible for an adjustment of status, an immigrant visa must have been "immediately available to him at the time his application [wa]s filed." 8 U.S.C. § 1255(a). "[A]n immigrant visa cannot be immediately available to a petitioner unless a petition on her behalf has been approved." Hernandez v. Ashcroft, 345 F.3d 824, 842 (9th Cir. 2003) (citations and footnote omitted). Although Ketsoyan filed an application for an adjustment of status, he provided no evidence confirming the approval of a visa petition on his behalf. He has therefore not shown prima facie eligibility for adjustment of status, which precludes his eligibility for a § 212(h) waiver.
Finally, Ketsoyan petitions this court to review the BIA's decision to not reopen his case sua sponte. But "[i]n declining to reopen [Ketsoyan]'s case sua sponte, the BIA cited only to 'exceptional circumstances' and offered no legal or constitutional basis. This court thus lacks jurisdiction" over this portion of the appeal because no legal or constitutional issues are in question. See Greenwood v. Garland, 36 F.4th 1232, 1237 (9th Cir. 2022).
The petition for review is thus DISMISSED as to Ketsoyan's arguments regarding sua sponte reopening, and the remainder of the petition is DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.