NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Hamlet Petrosyan,

Petitioner,

v.

Merrick B. Garland, U.S. Attorney 

General,

Respondent.

No. 21-386

Agency No. A070-390-792

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 15, 2023**

Pasadena, California

Before: LEE, BRESS, and MENDOZA, Circuit Judges.

Hamlet Petrosyan, a native and citizen of Armenia, seeks review of an 

order by the Board of Immigration Appeals (BIA) denying his motion to reopen 

removal proceedings. Petrosyan contends that the BIA abused its discretion by 

concluding that country conditions in Armenia have not materially changed since 

his initial removal proceedings and that, in any event, he cannot establish a prima 

* 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).

FILED

MAR 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-386

facie case for asylum or withholding of removal based on having HIV or the 

perceived association with the “lesbian, gay, bisexual, transgender, and intersex 

(LGBTI)” community. We have jurisdiction under 8 U.S.C. § 1252, and we deny 

the petition for review.

In 2018, Petrosyan filed an application for asylum, withholding of removal, 

and protection under the Convention Against Torture. The Immigration Judge 

denied his application, making an adverse credibility determination against him 

and finding that in any event he did not establish persecution or likelihood of 

torture. The BIA affirmed, and this court then denied his petition for review in 

2020, agreeing with the BIA’s adverse credibility conclusion. In 2021, he filed a 

motion to reopen removal proceedings with the BIA, which denied it as untimely.

1. The BIA did not abuse its discretion in denying Petrosyan’s motion to 

reopen. Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021) (standard of 

review). Even if a motion to reopen has not been filed within the required 90 

days of the final order of removal (as in this case), a petitioner can still rely on a 

changed conditions exception: he or she must show that “circumstances have 

changed sufficiently that a petitioner who previously did not have a legitimate 

claim for asylum [at the time of the initial hearing] now has a well-founded fear 

of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). 

Petrosyan, however, cannot rely on this exception because he has not 

shown materially changed conditions or circumstances in Armenia since 2018 

when he had his initial hearing. Petrosyan argues that the mistreatment of HIV-
3 21-386

positive and LGBTI individuals has increased in Armenia since 2018.

1

 He 

supports his argument with the 2019 Human Rights Report and Dr. Aram 

Terzyan’s expert opinion, both of which catalogue instances of deplorable 

violence against LGBTI individuals, discrimination against HIV-positive 

individuals, anti-LGBTI protests, and government officials expressing antiLGBTI sentiment. But his evidence fails to establish that there has been a

qualitative change in mistreatment since his 2018 hearing—violence and 

discrimination toward HIV-positive and LGBTI individuals, unfortunately, has 

been a persistent problem in Armenia. See Salim v. Lynch, 831 F.3d 1133, 1137 

(9th Cir. 2016). 

True, Dr. Terzyan’s report expresses additional concerns that the Armenian 

government’srecent decision to incorporate its Center for the Prevention of AIDS 

into another clinic will further reduce medical treatment for HIV-positive 

individuals. It further suggests that the escalation of the Armenian-Azerbaijani

war has increased animus against the LGBTI community. The BIA, however, 

concluded that these events have a speculative connection to increased

mistreatment of HIV-positive and LGBTI individuals, and this conclusion was 

not arbitrary, irrational, or contrary to law. See Almaraz v. Holder, 608 F.3d 638, 

641–42 (9th Cir. 2011). It was thus rational for the BIA to conclude that 

Petrosyan’s evidence showed a continuation in country conditions as opposed to 

1 Petrosyan is married to his wife but he states that he is perceived as a member 

of the LGBTI community because of his HIV status. 
4 21-386

a material increase in mistreatment. And while Petrosyan’s evidence showed a 

qualitative increase in medical discrimination against HIV-positive women, the 

BIA did not abuse its discretion by finding that this does not affect Petrosyan 

because he is a man.

2. Even if Petrosyan could establish materially changed conditions in 

Armenia, he fails to establish a prima facie case for asylum or withholding, so the 

BIA did not abuse its discretion by denying his motion to reopen. Petrosyan 

contends that he has a well-founded fear of future persecution because HIVpositive and LGBTI individuals in Armenia face a pattern or practice of 

persecution. Although public and private individuals in Armenia commit acts of 

violence and discrimination against HIV-positive and LGBTI individuals, the

BIA rationally concluded that these acts do not rise to a pattern or practice of 

persecution. See Bromfield v. Mukasey 543 F.3d 1071, 1079 (9th Cir. 2008)

(finding a pattern and practice where both public and private officials perpetrated 

violence against LGBTI individuals and laws criminalized homosexuality); 

Knezevic v. Ashcroft, 367 F.3d 1206, 1212–13 (9th Cir. 2004). Petrosyan thus 

fails to establish a reasonable likelihood that he has a well-founded fear of future 

persecution, which is necessary to have a prima facie case for asylum and 

withholding. See Salim, 831 F.3d at 1139. 

PETITION DENIED.