Albert Melikian v. Loretta E. Lynch
669 F. App'x 859
| 9th Cir. | 2016Background
- Albert Melikian and his wife Narine Ter-Barseghyan (Armenian citizens; Melikian also native of Iran) applied for asylum, withholding of removal, and CAT protection; their children were derivative beneficiaries but later severed from this review.
- An Immigration Judge (IJ) denied relief, finding petitioners not credible and that they filed frivolous asylum applications supported by fabricated testimony and fraudulent documents.
- Petitioners admitted in administrative pleadings to providing false testimony/documents and blamed counsel and others for fabrications; the IJ found that blame not credible.
- The Board of Immigration Appeals (BIA) dismissed petitioners’ appeal and later denied their motion to reopen as untimely; petitioners argued for equitable tolling based on ineffective assistance of counsel but waited three years to file after discovering the claim.
- Petitioners alleged due process violations from the IJ’s refusal to hold hearings on ineffective-assistance and revised claims; the IJ found that a frivolous finding bars reopening and that petitioners couldn’t overcome the adverse credibility ruling.
- The Ninth Circuit denied the petitions for review, upholding the BIA/IJ findings and denial of the motion to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen / equitable tolling | Melikian: counsel’s ineffective assistance excuses untimeliness; equitable tolling applies | Govt: motion was untimely and no diligent excuse for three-year delay | Denied: equitable tolling not warranted; petitioners offered no explanation for delay |
| Adverse credibility determination | Melikian: (no challenge in briefing) | Govt: IJ credibility finding supported by record and admissions of fabrication | Waived by petitioner; adverse credibility stands and disposes of claims |
| Frivolous asylum application finding | Melikian: disputed consequences; blamed counsel/others for fabrications | Govt: IJ followed proper procedure and notice; printed warning on form sufficed | Affirmed: substantial evidence supports finding of knowing fabrication; IJ applied correct framework |
| Due process re: hearings on ineffective-assistance and revised claims | Melikian: IJ refused to hold hearings and denied opportunity to present new evidence | Govt: IJ afforded procedures; frivolous-filing bar and credibility finding justified excluding reopening | Denied: no due process violation shown; frivolous-filing bar and adverse credibility defeated reopening |
Key Cases Cited
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (standards for BIA denial of motion to reopen)
- Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (equitable tolling for ineffective assistance requires due diligence)
- Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005) (failure to challenge issue on appeal waives it)
- Ahir v. Mukasey, 527 F.3d 912 (9th Cir. 2008) (procedural framework for finding frivolous asylum applications)
- Cheema v. Holder, 693 F.3d 1045 (9th Cir. 2012) (notice from printed warnings on asylum forms regarding frivolous filings)
- Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000) (substantial-evidence review of IJ findings)
- Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010) (due process requires full and fair hearing and prejudice)
- Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005) (frivolous asylum finding bars reopening and undermines later claims)