Suren Avagyan v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUREN AVAGYAN, No. 18-70533
Petitioner, Agency No. A075-519-291
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Suren Avagyan, a native and citizen of Armenia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen. Singh v. Ashcroft, 367
*
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). Avagyan’s request for oral
argument, set forth in his opening brief, is denied.
F.3d 1182, 1185 (9th Cir. 2004). We deny in part and dismiss in part the petition
for review.
The BIA did not abuse its discretion in denying Avagyan’s untimely and
number-barred motion to reopen, where he failed to demonstrate prima facie
eligibility for relief to qualify for an exception to the time and number limitations
for motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597
F.3d 983, 986 (9th Cir. 2010) (the BIA can deny a motion to reopen for failure to
establish prima facie eligibility for the relief sought).
We lack jurisdiction to review Avagyan’s challenge to the agency’s
discretionary decision not to reopen proceedings sua sponte, where Avagyan failed
to raise a colorable constitutional claim or question of law. See Ekimian v. INS,
303 F.3d 1153, 1159 (9th Cir. 2002); see also Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016) (“[T]his court has jurisdiction to review Board decisions denying
sua sponte reopening for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.”). Avagyan contends that Ekimian was
wrongly decided, but has identified no basis for revisiting this precedent at this
time. See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) (“A three-judge
panel cannot reconsider or overrule circuit precedent unless ‘an intervening
Supreme Court decision undermines an existing precedent of the Ninth Circuit, and
both cases are closely on point.’” (citation omitted)).
2 18-70533
Avagyan’s request for fees and costs under the Equal Access to Justice Act
is denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 18-70533