Gasparian v. Holder , 700 F.3d 611 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2231
ASHOT GASPARIAN; VERGINE GASPARIAN; HAIK GASPARIAN,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Woodlock,* District Judge.
Randy Olen on brief for petitioners.
Sabatino F. Leo, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Anthony P. Nicastro, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
December 3, 2012
*
Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. Petitioners Ashot Gasparian,
Vergine Gasparian1 and Haik Gasparian2 are citizens and natives of
Armenia who were ordered removed from the United States following
the denial of their asylum claim in 1997. They have resided in the
country since. Last year, they filed a motion to reopen their
asylum claim; the Board of Immigration Appeals ("BIA") denied this
motion, and the petitioners brought a timely appeal to this court.
We begin by briefly discussing the factual background of the
Gasparians' initial asylum claim.
Ashot and Vergine Gasparian are husband and wife who were
each born in Yerevan, Armenia, in 1950 and 1952, respectively.
They were married in 1979, and their son Haik Gasparian was born in
Yerevan, Armenia, in 1989. As Ashot Gasparian testified before an
immigration judge, he ran a business in Armenia that sold shoes and
slippers. Between 1976 and 1978, Ashot Gasparian did business with
an Azerbaijani man that involved travels to Azerbaijan. Armenia
had a tense relationship with Turkey, and many Armenians perceived
the Azerbaijani people as being close to Turkey.
1
In most documents in the record, Vergine is referred to by
her maiden name of Djirdjian or Djirdjiak. Because she identifies
herself as Vergine Gasparian in her brief to this court, we refer
to her by that name.
2
The record contains some alternative spellings for Haik
Gasparian's name, such as Halik or Hiak, but Haik appears to be the
preferred spelling, and that is the spelling he uses in the brief
to this court.
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Ashot Gasparian testified that for years, he was
threatened by Armenians who were upset at him for his business
dealings with an Azerbaijani man, even after those business
dealings ended. These threats took the form of phone calls
(including some in the middle of the night) and knocks on his door,
although his family apparently never met those who were making the
threats face to face. The threats were to beat or harm Ashot
Gasparian, and after Haik Gasparian was born, they threatened to
kidnap Haik.
Ashot Gasparian complained to the police once, but the
police indicated they could not stop the threats. Ashot Gasparian
closed his business, and the family moved to a new neighborhood in
1990 or 1991; they received two or three threatening phone calls at
their new residence, but no knocks on their door. None of the
family members was ever physically harmed. However, in 1992,
Vergine and Haik Gasparian entered the United States on visitor
visas and Ashot Gasparian did so in 1993.
Each overstayed and Ashot Gasparian admitted that return
to Armenia was never intended. The Gasparians settled in Rhode
Island. Since around 1995 or 1996, Ashot Gasparian and his wife
have been employed at a jewelry company. Haik Gasparian attended
Rhode Island public schools, graduated from high school, and is now
enrolled in college; he also works as a cook at a pizza restaurant.
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In December 1994, Ashot Gasparian filed a request for
asylum and withholding of removal on behalf of himself, his wife,
and his son. Although the initial asylum form contained a false
story that the family was persecuted because Vergine Gasparian was
Azerbaijani, Vergine Gasparian stated in an affidavit that the
false asylum application was filled out by a lawyer in California,
and that Ashot Gasparian was unaware of the falsehoods because he
did not speak or read English. At the hearing, both testified to
the facts stated above.
On November 7, 1995, the Immigration Judge ("IJ") denied
the Gasparians' applications for asylum and withholding of removal.
The IJ expressed doubt about the claim of harassment through the
early 1990s for business activities ending in 1978 but concluded in
any event that the threats did not lead to harm nor were the
threateners connected to the government. The Gasparians appealed
to the BIA but gave no substantive reasons and filed no brief, so
the appeal was summarily dismissed in March 1997, with the BIA
allowing 30 days for voluntary departure. The Gasparians filed a
motion to reopen their proceedings in January 1998, but the BIA
dismissed the motion as untimely.
The Gasparians ignored the BIA's order to depart and
continued living in Rhode Island undisturbed until, in May 2011,
they filed a second motion to reopen their proceedings along with
renewed applications for asylum, withholding of removal, and relief
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under the Convention Against Torture ("CAT"). Their motion, citing
news articles about increasing diplomatic and military tensions
between Armenia and Azerbaijan, argued that the potential for war
constituted changed circumstances making it more likely that the
Gasparians would be persecuted for perceived sympathy to Turks and
Azerbaijanis; the motion also noted that the 2009 State Department
Human Rights Report for Armenia indicated widespread human rights
abuses.
In September 2011, the BIA denied the motion to reopen.
The BIA stated that the Gasparians had shown changed circumstances
in Armenia, but they had not shown that those changes would be
material to their claims. The BIA noted that Ashot Gasparian's
dealings with Azerbaijanis had ended over thirty-two years ago, and
there was no indication that Armenians were still interested in
harassing his family after eighteen years living in the United
States. The Gasparians brought a timely appeal to this court.
Motions to reopen ordinarily must be filed within ninety
days of the BIA decision, 8 C.F.R. § 1003.2(c)(2) (2012), but they
can be filed later if supported by previously unavailable
information showing material changed circumstances,
id. § 1003.2(c)(3)(ii); Raza v. Gonzales, 484 F.3d 125, 127 (1st
Cir. 2007). But the new evidence "must, at a bare minimum,
establish a prima facie case sufficient to ground a claim of
eligibility for the underlying substantive relief." Le Bin Zhu v.
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Holder, 622 F.3d 87, 92 (1st Cir. 2010) (internal quotation marks
omitted). Here, the BIA's assessment was within its authority and
was neither arbitrary nor flawed by any error of law. See Aponte
v. Holder, 683 F.3d 6, 10 (1st Cir. 2012).
The possibility of war between Armenia and Azerbaijan was
speculative and, even if tensions might enhance the likelihood of
harm to perceived sympathizers of Turkey and Azerbaijan, the old
threats against petitioners lay over thirty years in the past and
they had been absent from the country for almost twenty. The BIA
was not required to suppose that the threats were now likely to be
renewed let alone that they would be translated into action
amounting to persecution.3 The new evidence gives no substantial
support to asylum, withholding of removal or CAT relief.
The Gasparians request that even if the denial of their
motion to reopen is upheld, we "issue an order directing the
Government to state whether it will exercise its prosecutorial
discretion . . . to cancel or otherwise terminate the removal
proceedings against this family." Appellants' Br. 7. They rely
primarily upon a June 2011 memorandum, known popularly as the
3
Nor does the State Department report indicate that the
Gasparians will be singled out. Meguenine v. INS, 139 F.3d 25, 29
(1st Cir. 1998) ("[G]eneral fears (even 'well-founded' ones) of
future harm from political upheaval or terrorist violence are not
sufficient to establish eligibility for asylum . . . .").
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Morton Memo,4 which lists various factors that immigration
officials should consider in deciding whether to refrain from
bringing proceedings against or removing aliens. Although the
immigration statutes do not confer jurisdiction on this court to
review acts of prosecutorial discretion, Immigration and
Nationality Act § 242(g), 8 U.S.C. § 1252(g) (2006), we have
sometimes asked the government to advise us of its intentions one
way or the other.
Ashot and Vergine Gasparian appear to be sympathetic
candidates, having lived here for a good many years, with Vergine
Gasparian's sister's family living in Rhode Island as permanent
residents, and with stable employment and nothing that would
necessarily prevent an exercise of prosecutorial discretion in
their favor. But they also fit none of the categories identified
in the Morton Memo as warranting "prompt particular care and
consideration." Morton Memo, supra, at 5.
Our inquiries have, in the past, been limited to cases
where the exercise of discretion seemed reasonably likely, such as
for aliens who entered the country as children or who have
4
Morton, Dir., U.S. Immigration & Customs Enforcement,
Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens (June 17, 2011),
a v a i l a b l e a t
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-di
scretion-memo.pdf.
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dependent United States citizen children.5 Making these inquiries
routine would not only add to delay but deprive them of any
significance. Of course, since the 1997 removal order, the
government has taken no action to physically remove Ashot and
Vergine Gasparian. It might seem peculiar to alter the status quo
because they voluntarily sought further relief, presumably hoping
to regularize their status. Nothing prevents the government from
providing the forbearance they now seek.
Haik Gasparian has a more promising chance for relief
under the Morton Memo, having entered the United States as a young
child and pursued his education in this country, and being beyond
blame for remaining in the country despite the BIA's removal order.
He may also qualify for deferred action under a new program
announced in June 2012 for immigrants who meet certain conditions
including entry into the country as children, schooling or military
service, and lack of a serious criminal record. Consideration of
Deferred Action for Childhood Arrivals Process, U.S. Citizenship &
Immigration Servs., http://www.uscis.gov/childhoodarrivals (last
updated Sept. 14, 2012).
This new June 2012 program, although seemingly tailored
for individuals like Haik Gasparian, requires an application by
5
See, e.g., Order, Sierra-Pena v. Holder, No. 11-1585 (1st
Cir. May 22, 2012); Order, Ni v. Holder, No. 11-1518 (1st Cir. Feb.
14, 2012); Order, Arriaza v. Holder, No. 10-1532 (1st Cir. Jan. 24,
2012); Order, Arevalo v. Holder, No. 10-2483 (1st Cir. Dec. 12,
2011).
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him, and acceptance of an applicant depends on an exercise of
discretion. Although the BIA's refusal to reopen must be affirmed,
we will stay the mandate as to Haik Gasparian for 90 days to allow
him to apply for relief; although we cannot order the government to
defer removal after the mandate issues, we assume that it is
unlikely to preempt the application if it believes that the
application has any chance of success.
As described above, we would not ordinarily offer similar
relief to petitioners such as Ashot and Vergine Gasparian.
However, because they are the parents of a young adult who appears
to be a strong candidate for deferred action, the government may
well wish to avoid splitting up the family by declining to remove
them as well. To ensure that they are not removed before the
government has time to consider the question, we also stay the
mandate for 90 days as to Ashot and Vergine Gasparian.
It is so ordered.
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