Ayanian v. Garland
| Decision Date | 03 April 2023 |
| Docket Number | 16-70809 |
| Parties | NSHAN AYANIAN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted September 19, 2022 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A077-310-327
Judith L. Wood (argued), Law Office of Judith L. Wood, Los Angeles California, for Petitioner.
Brooke M. Maurer (argued), Trial Attorney; Carl McIntyre, Assistant Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington D.C.; for Respondent.
Before: Danny J. Boggs, [*] Kim McLane Wardlaw, and Sandra S Ikuta, Circuit Judges.
The panel denied Nshan Ayanian's petition for review of a decision of the Board of Immigration Appeals (BIA) denying his untimely and numerically barred second motion to reopen, and denied the parties' joint request to send this case to mediation in order to put the appeal into abeyance while Ayanian pursued other forms of relief from removal.
Ayanian unsuccessfully sought asylum and related relief based on his fear of conscription into the Armenian military and his fear of money lenders to whom he owed money. He also previously sought reopening based on changed country conditions consisting of evidence that some people over the draft age of 27 were being called for military service by the Armenian government. As to the BIA's denial of Ayanian's first motion to reopen, this court held that it was not irrational, arbitrary, or contrary to law for the BIA to deny reopening because Ayanian failed to show that the Armenian government would consider him to be either a draft evader or a conscript, or that the Armenian government would acquiesce to future torture.
In the present motion to reopen, Ayanian again sought reopening based on changed country conditions consisting of the war between Nagorno-Karabakh and Azerbaijan, and escalating tensions between Armenia and Azerbaijan. Other than noting these changed circumstances, Ayanian raised the same issues he had raised in his unsuccessful first motion to reopen, and again claimed that he feared persecution on account of his past evasion of military service and also feared being conscripted into the military. The panel observed that on appeal, Ayanian did not identify any relevant changed country conditions, and conceded that at age 47, he is currently likely beyond draftable age. The panel wrote that Ayanian's repeated allegations that the Armenian authorities are punishing individuals who evaded the draft in the past, which this court previously found insufficient for reopening, did not establish that he now has a legitimate claim for persecution based on his past evasion of military service.
At oral argument, Ayanian's counsel conceded that Ayanian's second motion to reopen lacked merit. Ayanian instead sought a means of holding his removal in abeyance until he obtained lawful permanent resident status. Although United States Citizenship and Immigration Services (USCIS) had approved his mother's and sister's I-130 visa petitions filed on his behalf, Ayanian was awaiting his priority date to become current, which would then allow him to submit an I-485 application for adjustment of status. Government counsel indicated that the government was not in a position to offer Ayanian any relief, but later suggested that the case be placed in mediation, which would give the Department of Homeland Security more time to consider whether it would exercise prosecutorial discretion to give Ayanian relief. Ayanian joined in this request. The panel noted that even after Ayanian filed an I-485 application, it would take time for USCIS to process that application and determine whether he had met the various statutory and regulatory requirements for adjustment of status, and whether the application should be granted as a matter of discretion, a process that would likely last for at least another year, and potentially much longer.
Because Ayanian conceded that the dispute involving his motion to reopen lacked merit, the parties had not indicated that transferring the matter to mediation would advance Ayanian's adjustment-of status process, and the parties had not explained how a mediator's assistance in negotiating, defining the relevant issues, or exploring alternatives would assist Ayanian in achieving his goal, the panel concluded that Ayanian's petition for review was not the sort of dispute that was appropriate for mediation. The panel observed that the parties had not disguised the fact that the objective of transferring the matter to mediation was to delay Ayanian's removal from the country until the government had agreed to provide discretionary relief. The panel wrote that it was an abuse of the court's mediation process to use it for a purpose unrelated to resolving disputes and as a substitute for the issuance of a stay. The panel additionally noted that the government had numerous means to avoid enforcement against Ayanian, including specific procedural tools to hold Ayanian's case in abeyance, such as remanding the matter to the BIA, moving to reopen proceedings with the BIA or to dismiss the proceedings, requesting a continuance from the BIA, or simply deciding not to execute Ayanian's final order of removal-decisions which are the prerogative of the Executive Branch, not the judiciary. Thus, the panel denied the motion to refer to mediation.
Judge Wardlaw concurred with the majority's reasoning and conclusion on the merits of Ayanian's second motion to reopen, but dissented from the majority's denial of the parties' joint request to refer this case to mediation. Judge Wardlaw wrote that mediation is an effective tool to fully, fairly, and efficiently resolve certain immigration cases, and that the court should not be reticent in a proper case to use it-especially when the government itself joins in such a request. Judge Wardlaw noted that Ayanian's family members had filed a visa petition on his behalf over 15 years ago, and since that time, Ayanian has dutifully waited in line and neither engaged in nor been convicted of any conduct that would render him inadmissible. Judge Wardlaw wrote that even though Ayanian was finally within striking distance of a green card, his case, like those of the millions of noncitizens backlogged in the immigration courts or seeking relief before USCIS, was snarled in bureaucratic proceedings through no fault of his own. In Judge Wardlaw's view, faced with the extraordinary sanction of removal, boxed in by a broken immigration system, the request for a referral to mediation was not unreasonable.
Nshan Ayanian petitions for review of an order by the Board of Immigration Appeals (BIA) denying his second motion to reopen removal proceedings. But Ayanian's more pressing concern, as explained in oral argument, is to avoid a decision on the merits of this petition for review until he has successfully obtained relief from removal. To do so, he joins the government's request to transfer this matter to mediation. We deny Ayanian's petition for review on the merits. We also deny the joint request to send this case to mediation in order to put the appeal into abeyance while Ayanian pursues other forms of relief from removal. In the matter before us, it is the role of the Executive Branch-not the judiciary-to allow Ayanian to remain in the country while he seeks further relief.
Ayanian was born in Armenia in 1969, when it was still a constituent republic of the Soviet Union. When he was 17, he was drafted into the Soviet Army and served two years of compulsory service. Following the collapse of the Soviet Union in 1991 the Republic of Armenia became an independent state. The new Armenian government ordered young people to serve in the Armenian army. After reading several newspaper articles about abuses and crimes against service members committed by military leaders, Ayanian refused to join the military and hid from the officers who came by his parents' home to recruit him. He fled to Russia in 1995 and was admitted to the United States in 1996 on a one-year nonimmigrant visitor visa.
Ayanian overstayed his nonimmigrant visa, and in May 2000, the government issued a Notice to Appear (NTA), charging him with being removable for remaining in the United States longer than permitted. See 8 U.S.C. § 1231(a)(1)(B). Ayanian admitted the allegations in the NTA and conceded removability. He subsequently filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). At his merits hearing in 2001, Ayanian testified regarding his service in the Soviet Army, his fear of being recruited into the Armenian military, the poor living conditions in Armenia, and his fear of unnamed money lenders to whom he owed $800.
The Immigration Judge (IJ) issued an oral decision denying Ayanian's applications for relief. The IJ held that Ayanian was statutorily ineligible for asylum because his application was untimely, having been filed more than one year after the date of his arrival in the United States see 8 U.S.C. § 1158(a)(2)(B), and Ayanian had not demonstrated the applicability of an exception to this deadline. The IJ next ruled that Ayanian was not entitled to withholding of removal, because he failed to establish past persecution or a well-founded fear of future persecution on account of a protected ground. See 8 U.S.C. § 1231(b)(3). The IJ also held that Ayanian was not entitled to CAT relief because he failed to establish that any government official would consent or acquiesce to his torture by the...
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