NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARTIN SARKSIAN, No. 17-70276 Petitioner, Agency No. A078-528-835 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 16, 2022** Pasadena, California Before: BRESS and BUMATAY, Circuit Judges, and GLEASON,*** District Judge. Martin Sarksian petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen removal proceedings. Sarksian made * 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 Sharon L. Gleason, Chief United States District Judge for the District of Alaska, sitting by designation. an untimely motion to reopen based on allegedly changed country conditions in Armenia. We review the denial of an untimely motion to reopen for abuse of discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. 1. The BIA did not abuse its discretion in denying Sarksian’s untimely motion to reopen. An untimely motion to reopen may be allowed if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (quoting Azanor v. Ashcroft, 364 F.3d 1013, 1021–1022 (9th Cir. 2004)). To satisfy the changed country conditions exception, the petitioner must “clear four hurdles”: (1) he ha[s] to produce evidence that conditions ha[ve] changed in [his country of origin]; (2) the evidence ha[s] to be “material;” (3) the evidence must not have been available and would not have been discovered or presented at the previous proceeding; and (4) he ha[s] to “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.” Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (quoting Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005)). Here, Sarksian brought forward multiple forms of evidence that he claims show changed country conditions: (1) his own testimony, (2) media articles or expert reports describing the conflict between Armenia and Azerbaijan, and (3) State Department 2015 country reports on Armenia and Azerbaijan. But Sarksian’s 2 testimony concerned events that happened in the 1990s—the evidence that was actually used and considered at his initial asylum hearing. Thus, that evidence cannot demonstrate changed country conditions or satisfy the requirement that it was previously unavailable. See 8 C.F.R. § 1003.2(c)(3)(ii). Sarksian also states that he fears arrest and disproportionate punishment on account of his Azeri ethnicity for evading military service. But Sarksian offers no evidence to demonstrate that the Armenian government disproportionately punishes Azeris for this crime. Indeed, we have …
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