Opinion
19-71063 19-72531
11-18-2022
ARTEM MKRTCHIAN, AKA Artem Mkdrtchian, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. ARTEM MKRTCHIAN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 16, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-286-001
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK, [***] District Judge.
MEMORANDUM [*]
Artem Mkrtchian, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals' ("BIA") denials of a motion to reopen his withholding proceedings (No. 19-71063) and a motion to reopen his reinstated removal order (No. 19-72531). We have jurisdiction under 8 U.S.C. §§ 1252(a)(1), (b)(6). We review for abuse of discretion the BIA's denial of a motion to reopen. Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). We deny the petitions. Because the parties are familiar with the factual and procedural history of the cases, we need not recount it here.
In 19-71063, we deny the motion to stay removal (Docket No. 1) and the supplemental motion to stay removal (Docket No. 6).
I
In 19-71063, the BIA did not err in denying Mrktchian's motion to reopen his withholding proceedings on the basis of ineffective assistance of counsel. A motion to reopen must be filed within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). A party may make one motion to reopen. Id. § 1229a(c)(7)(A). However, where a noncitizen's attorney "engaged in fraudulent activity causing an essential action in her client's case to be undertaken ineffectively, out of time, or not at all, equitable tolling is available." Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir. 2003). Without equitable tolling, Mkrtchian's motion to reopen is time- and number-barred.
To determine whether equitable tolling is available, we consider the merits of Mkrtchian's ineffective-assistance-of-counsel claim. To prevail, the petitioner must demonstrate that (1) counsel failed to perform with sufficient competence and (2) petitioner was prejudiced by his counsel's performance. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). To establish prejudice in the context of a motion to reopen, "the petitioner need only demonstrate that counsel's deficient performance 'may have affected the outcome of the proceedings' by showing 'plausible' grounds for relief." Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 2019) (citation omitted).
Mkrtchian has not established prejudice. First, Mkrtchian is not entitled to the presumption of prejudice because he did not present record evidence to the BIA that his counsel's erroneous advice prevented him from filing a timely petition for review. Cf. Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000) (noting that prejudice is presumed where a noncitizen "is prevented from filing an appeal in an immigration proceeding due to counsel's error"). Second, Mkrtchian has not shown prejudice because he failed to demonstrate in the motion to reopen that he would have a "plausible" claim for withholding or CAT relief. See Flores, 930 F.3d at 1087. As a result, Mkrtchian's motion to reopen is time-and number-barred and is ineligible for equitable tolling. For the same reason, the BIA did not err in refusing to reissue its prior withholding ruling.
II
In 19-72531, Mkrtchian seeks to reopen his reinstated removal order. DHS may reinstate a prior order of removal if it finds that (1) petitioner is a noncitizen, "(2) who was subject to a prior removal order, and (3) who illegally entered the United States." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc); see also 8 U.S.C. § 1231(a)(5). A reinstated removal order "is not subject to being reopened or reviewed." § 1231(a)(5); Cuenca v. Barr, 956 F.3d 1079, 1088 (9th Cir. 2020).
The BIA correctly determined that the IJ had no jurisdiction to adjudicate Mkrtchian's motion to reopen. While a noncitizen may timely petition for review of a reinstated removal order on several grounds, the noncitizen may not present those grounds for review in a motion to reopen. Bravo-Bravo v. Garland, 40 F.4th 911, 914-15 (9th Cir. 2022).
PETITIONS DENIED.
[*] 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 Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.