FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGEY YEGHIAZARYAN,  No. 03-72159

Petitioner, Agency No.

v. A74-423-765

ALBERTO R. GONZALES, Attorney ORDER

General, AMENDING

Respondent.  OPINION AND

DENYING

PETITION FOR

PANEL

REHEARING AND

AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 20, 2005—Pasadena, California

Filed December 14, 2005

Amended March 10, 2006

Before: Andrew J. Kleinfeld and Raymond C. Fisher,

Circuit Judges, and Milton I. Shadur, Senior District Judge.*

Opinion by Judge Shadur

*The Honorable Milton I. Shadur, Senior Judge for the United States

District Court for the Northern District of Illinois, sitting by designation.

2423
COUNSEL

Aggie R. Hoffman, Shivani T. Mehta, Law Offices of Aggie

R. Hoffman, Los Angeles, California, for the petitionerappellant. 

Peter D. Keisler, Assistant Attorney General; Terri J. Scadron,

Assistant Director; Jennifer A. Parker, Attorney; Jennifer

Levings, Attorney; Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington D.C., for

the respondent-appellee.

ORDER

The opinion filed December 14, 2005, is amended in its

entirety as follows: 

OPINION

Sergey Yeghiazaryan (“Yeghiazaryan”) challenges the

decision of the Board of Immigration Appeals (“BIA”) denying his motion for reconsideration of the BIA’s earlier denial

of his motion to reopen. Yeghiazaryan had sought reopening

of the BIA’s decision dismissing his appeal from the denial by

an Immigration Judge (“IJ”) of his asylum application and of

the withholding of removal. Because the BIA’s denial of

Yeghiazaryan’s motion to reconsider was an abuse of discretion and a violation of due process, we grant Yeghiazaryan’s

2426 YEGHIAZARYAN v. GONZALES
petition for review and remand for the substantive consideration of his motion to reopen. 

Background1

Yeghiazaryan, a citizen of Armenia, was born in Siberia to

parents exiled by the government of the former Soviet Union.

On November 11, 1995 Yeghiazaryan entered the United

States with a Soviet passport and a B-2 visa. One and one-half

months later, on December 29, 1995, Yeghiazaryan filed an

application for asylum (I-589) with the Immigration and Naturalization Service (“INS”). Yeghiazaryan could not speak or

understand English, so he enlisted the help of a lay person to

complete his I-589 application. Because that nonlawyer never

translated the I-589 application for him, Yeghiazaryan was

unaware of the facts that he needed to include in the I-589 and

hence failed to communicate those facts to the nonlawyer for

inclusion. 

At Yeghiazaryan’s asylum interview, the asylum officer

found his testimony to be “consistent, detailed, and plausible

in light of country conditions . . . [and] therefore . . . credible.” According to the officer, although Yeghiazaryan presented evidence indicating that his “fundamental human rights

to security of person, liberty, and freedom from arbitrary

arrest were violated,” the evidence did not show that these

abuses were perpetrated “on account of any statutory

grounds.” On May 20, 1996 the matter was referred to the IJ

and a Notice To Appear for Hearing was issued. 

Yeghiazaryan retained an attorney to represent him at the

1What is reflected in this Background section is the state of the record

as presented to the immigration authorities and on our appeal—a record

that, because it forms the basis for our review, we must assume to be true.

We have not of course made any factual findings regarding such matters

as the nature of the conduct, or the adequacy of representation, on the part

of Yeghiazaryan’s earlier counsel as hereafter recited in the text. 

YEGHIAZARYAN v. GONZALES 2427
IJ hearing. That lawyer not only failed to prepare Yeghiazaryan for the hearing but was also unprepared herself on

multiple occasions before the IJ. In one instance she

instructed Yeghiazaryan to lie and tell the IJ that he was sick

so that she could secure a continuance on Yeghiazaryan’s

case, and Yeghiazaryan followed his lawyer’s advice—he

lied. Despite numerous continuances, the lawyer was still

unprepared once the hearing took place—thus she neglected

to translate into English critical documents proving imputed

political opinion. Instead Yeghiazaryan had to try to introduce

those documents himself as best he could. 

At the hearing the IJ found that Yeghiazaryan was not entitled to asylum, basing the denial largely on what the IJ

believed to be the “most significant testimony”: Yeghiazaryan’s statement, as translated, that if he returned to Armenia he

would “not [be] in danger, but my family would be humiliated.” As the IJ explained, prospective humiliation is not sufficient to meet the statutory criteria for asylum: “a wellfounded fear of persecution or a clear probability of persecution.” Unfortunately that analysis was based on what has now

been labeled as a serious mistranslation by the interpreter of

Yeghiazaryan’s actual statement. Noune Oganessian

(“Oganessian”), an official court interpreter later hired by

Yeghiazaryan’s third lawyer to help in preparation of his

motion to reopen, has explained that Yeghiazaryan really said

that he would “[n]ot only [be] in danger, but my family

would be humiliated” (emphasis added). 

After the hearing the original counsel notified Yeghiazaryan that she would not represent him on appeal. Yeghiazaryan then sought to retain another lawyer. Although

Yeghiazaryan believed that he was signing a contract to enlist

that lawyer’s services, the contract (which was never translated into Armenian or Russian) in fact provided for the services of the lawyer’s wife. Yeghiazaryan was also unaware

that the wife, despite her retainer as his attorney, filed a purported pro se brief in Yeghiazaryan’s name. That eight-page

2428 YEGHIAZARYAN v. GONZALES
brief included only boilerplate recitations of the law and contained just two paragraphs that referred to the particular facts

and merits of Yeghiazaryan’s case. 

On November 27, 2002 the BIA affirmed without opinion

the IJ’s denial of asylum, a ruling that could be the subject of

a motion to reopen filed within 90 days. Confronted by

another loss due to ineffective assistance by counsel, Yeghiazaryan then hired a third lawyer, Aggie Hoffman

(“Hoffman”). On December 23, 2002 Hoffman filed a skeletal

motion to reopen on Yeghiazaryan’s behalf.2 That motion

identified four grounds for reopening: (1) ineffective assistance of counsel, (2) an ineffective interpreter, (3) new and

material evidence that had previously been unavailable and

(4) other evidence not brought to the attention of the IJ

because of the ineffective assistance of counsel. And having

done so, the motion notified the BIA that Yeghiazaryan would

“submit a brief, declarations, and fully documented basis of

the grounds of this [motion to reopen], within the 90 day time

period.” 

In addition to handling the motion to reopen, Hoffman concurrently prepared an application for stay of removal (Form

I-246).3 Yeghiazaryan was scheduled to be deported on

December 27, 2002, when the BIA’s dismissal of his appeal

became final, and the December 23 filing of the skeletal

motion to reopen was an important adjunct of the application

for a stay of deportation. In support of the application for stay

of removal, Hoffman provided the INS with a copy of complaints that had been filed with the California State Bar

2On January 8, 2003 the BIA acknowledged receipt of Yeghiazaryan’s

motion to reopen. 

3Yeghiazaryan requested that this Court grant him permission to supplement the record with a copy of the I-246 he submitted in December 2002

and a copy of a second I-246 he submitted in May 2003. As those documents were not presented to the BIA, we will not review them on appeal

(see 8 U.S.C. § 1252(b)(4)(A)). 

YEGHIAZARYAN v. GONZALES 2429
against all of the other lawyers and a receipt of the filing fee

paid for the motion to reopen. According to Yeghiazaryan, in

considering an I-246 application agents from Immigration and

Customs Enforcement typically “only look for a filing fee

from the BIA as evidence that further review is pending,” so

that a stay is warranted. On February 5, 2003 Yeghiazaryan’s

application for stay of removal was granted. 

Just one week later, on February 12, 2003, the BIA summarily dismissed Yeghiazaryan’s motion to reopen for its failure

to provide supporting evidence. At the time of that dismissal

there were still 14 days left in the 90-day window for Yeghiazaryan to file such evidence. 

On March 14, 2003 attorney Hoffman filed a motion on

Yeghiazaryan’s behalf for reconsideration of the BIA’s denial

of the motion to reopen. Because the BIA had denied the

motion to reopen before Hoffman could provide the brief and

evidence to support it, she included those materials in the

motion to reconsider. Similarly, Hoffman, who had intended

to file her own declaration with the evidence in support of the

motion to reopen, included her declaration with the motion to

reconsider. Hoffman’s declaration explained that the original

motion to reopen was skeletal because she had to file something to stay Yeghiazaryan’s deportation, and the limited

nature of that filing was due to the facts that she had only

recently been retained, that she was unable to obtain Yeghiazaryan’s documents from the earlier counsel because of the

holiday season and that she had difficulty finding a qualified

and certified Armenian translator. 

On May 23, 2003 the BIA denied Yeghiazaryan’s motion

to reconsider. Explaining the denial, the BIA stated: 

At the time the respondent’s motion to reopen was

filed with the Board, it was not supported by evidence that established that reopening was warranted.

The Board was therefore correct to deny it. There is

2430 YEGHIAZARYAN v. GONZALES
no language in the regulation that requires the Board

to hold in abeyance motions to reopen until the expiration of the 90-day period allowed for filing. 

Yeghiazaryan (still represented by Hoffman) argues before

us that the denial by the BIA of his motion to reconsider was

an abuse of discretion and violation of due process. Additionally he claims that he was denied due process when his petitions for appeal and for a motion to reopen were reviewed by

a single BIA member. We have jurisdiction pursuant to 8

U.S.C. §1252(a).

Standard of Review

We review the BIA’s denial of a motion to reopen for

abuse of discretion (see Lara-Torres v. Ashcroft, 383 F.3d

968, 972 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir.

2005)). Such an abuse of discretion exists when the BIA acts

“arbitrarily, irrationally or contrary to law” (id., reconfirming

uniform earlier caselaw). Questions of law are reviewed de

novo, with deference generally afforded to the BIA’s interpretation of the immigration laws “unless that interpretation is

contrary to the plain and sensible meaning of the statute”

(Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)).

Claims of due process violations are also reviewed de novo

(id.). 

Denial by the BIA of the Motion To Reconsider

In filing a motion to reconsider, the petitioner must “specify[ ] the errors of fact or law in the prior Board decision . . .”

(8 C.F.R. § 1003.2(b)(1)).4 In this instance Yeghiazaryan contends that the BIA erred in denying his motion to reopen

when it pretermitted the time Yeghiazaryan had available to

file his motion to reopen. We agree. 

4All provisions of 8 C.F.R. will be cited “Reg. §—.” 

YEGHIAZARYAN v. GONZALES 2431
[1] Under Reg. §1003.2(c)(2) a petitioner has 90 days

“after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened” to file a

motion to reopen. Reg. §1003.2(c)(1) further explains that

“[a] motion to reopen proceedings . . . must be accompanied

by the appropriate application for relief and all supporting

documentation.” In denying Yeghiazaryan’s motion to

reopen, the BIA took the position—and the government now

argues—that the regulation requires simultaneous submission

of a petitioner’s motion, brief and supporting evidence, even

in instances where the petitioner has filed a protective motion

and has notified the court that he intends to provide the necessary application for relief and supporting documentation at a

later date within the 90-day time period. Nothing in Reg.

§1003.2(c), however, mandates concurrent submission under

such circumstances, nor is there any warning that early filing

somehow closes the otherwise available 90-day window. 

[2] Rather, as Garcia-Cortez v. Ashcroft, 366 F.3d 749 (9th

Cir. 2004) instructs, when the legal claims are clearly stated

the BIA violates a petitioner’s due process rights by dismissing a motion to reopen for failure to file supporting material

within the prescribed time limit. Although Garcia-Cortez concerned a neighboring regulation regarding summary dismissal, its reasoning is applicable here. In Garcia-Cortez two

petitioners filed a notice of appeal from the IJ’s decision. In

that notice the petitioners indicated both the bases of their

appeal and that they would separately file a written brief in

support of their appeal at a later date (id. at 751). Although

the promised brief was ultimately filed, that took place after

the time for so doing had elapsed (id.). As a result the BIA

summarily dismissed the petitioners’ appeal. We overturned

the BIA, finding the BIA’s summary dismissal due to the

belatedly filed briefing to be inappropriate where the petitioners had provided the BIA with sufficient notice of their claims

in their initial filing. 

[3] In this case Yeghiazaryan’s filing likewise provided the

BIA with notice of the specific grounds on which he sought

2432 YEGHIAZARYAN v. GONZALES
to challenge the IJ’s decision: It stated that he was entitled to

reopen his asylum hearing because he was prejudiced by his

ineffective and incompetent counsel and interpreter and

because he had new evidence to support his asylum application. Additionally, and perhaps most importantly,

Yeghiazaryan—like the petitioners in Garcia-Cortez—did

then file a brief and documents to support his claim. 

Indeed, the only reason that Yeghiazaryan’s brief was

assertedly “untimely” was because the BIA had dismissed his

case summarily before the Regulation’s 90-day period elapsed.5

At no point before so ruling did the BIA indicate to Yeghiazaryan that such an early dismissal was possible. Yeghiazaryan filed what amounted to a fully briefed and supported

motion to reopen at the next available time—in his motion to

reconsider. That newly-filed motion not only set out support

for Yeghiazaryan’s claims of ineffective assistance of counsel

and ineffective interpreter and provided the BIA with new

evidence to support his asylum application but also, as noted

above, set forth his explanation for why he earlier filed the

skeletal motion to reopen. 

To support his claim for ineffective assistance of counsel,

pursuant to Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988), Yeghiazaryan included disciplinary complaints he had

filed against the earlier lawyers. Additionally, Yeghiazaryan

included a report by Oganessian demonstrating the incompetency of the interpreter used at Yeghiazaryan’s asylum hearing. While that report documented numerous errors of the

original interpreter, the most crucial error came where the

court interpreter distorted Yeghiazaryan’s answer when the IJ

5

In its brief the government tries to argue that even if the BIA had held

open Yeghiazaryan’s motion to reopen, Yeghiazaryan “failed to file the

supporting evidence within the ninety-day time period allowed by the regulation.” That argument lacks merit. As we have explained, once the BIA

prematurely dismissed his motion to reopen, the only option for Yeghiazaryan was to file, in conjunction with his motion to reconsider, the evidence with which he intended to support his motion to reopen. 

YEGHIAZARYAN v. GONZALES 2433
asked him: “Do you believe that upon your return you would

be, ah, pursue or in danger for your past activities?” While the

court interpreter translated Yeghiazaryan’s answer as “[n]ot in

danger, but my family would be humiliated, my entire family,” Yeghiazaryan actually responded “[n]ot only in danger,

but my family would be humiliated, my entire family.” That

error was highly prejudicial, for as stated earlier it was based

on that mistakenly altered statement—that Yeghiazaryan

would suffer only humiliation—that his application for asylum was denied. 

[4] In denying the motion to reconsider, the BIA neither

took into consideration nor evaluated that new evidence. It

simply reaffirmed its earlier determination that the dismissal

of the motion to reopen was proper on procedural grounds.

Under circumstances such as these—where Yeghiazaryan had

to file his skeletal motion to reopen for collateral purposes,

where counsel filing the motion to reopen entered the case at

a very late stage and during the holiday season, where

Yeghiazaryan’s motion to reopen laid out its bases and notified the BIA that evidence would be forthcoming within the

prescribed regulatory time for filing, and where the BIA did

not notify Yeghiazaryan that his motion could be denied

before the expiration of that time for filing—the BIA’s denial

was not only “arbitrary” and “irrational” but also “contrary to

law” and a violation of due process. Due process “requires

that aliens who seek to appeal be given a fair opportunity to

present their cases” (a well-established proposition reconfirmed in Garcia-Cortez, 366 F.3d at 753). In that respect, see

also Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.

2000) (citation omitted), which holds that although there is no

administrative rule requiring the BIA to review all relevant

evidence submitted on appeal, “it is beyond argument . . . that

the Due Process Clause requirement of ‘a full and fair hearing’ mandates that the [BIA] do so in its capacity as a reviewing tribunal.” 

[5] In this instance Yeghiazaryan was denied due process

because the BIA foreclosed his one avenue of relief without

2434 YEGHIAZARYAN v. GONZALES
providing him notice and without a reasoned basis for doing

so. That action was highly prejudicial, because it prevented

Yeghiazaryan from correcting the incompetent translation at

his hearing before the IJ, and because “a competent translation is fundamental to a full and fair hearing” (Perez-Lastor

v. INS, 208 F.3d 773, 778 (9th Cir. 2000)). Here the distorted

translation resulted in the IJ’s fatal misunderstanding of a dispositive moment in Yeghiazaryan’s testimony. When the BIA

then refused to consider the evidence Yeghiazaryan later submitted with his motion to reconsider, it compounded the

harm. And because Yeghiazaryan was thus denied the opportunity to have his motion to reopen heard on the merits, we

remand this case to the BIA for substantive consideration of

that motion. 

Single BIA Member Review

Yeghiazaryan’s alternative contention that the BIA review

of appeals by single-person panels is a per se violation of due

process lacks merit. On that score Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003) has held that streamlining is constitutionally permissible. Moreover, we will not

take judicial notice, as requested by Yeghiazaryan, of the

Findings and Recommendations of the ABA Commission on

Immigration Policy, Practice and Pro Bono. 

Conclusion

For the reasons stated in this opinion, we GRANT Yeghiazaryan’s petition for review and REMAND this case to the

BIA for consideration on the merits of Yeghiazaryan’s motion

to reopen (see INS v. Ventura, 537 U.S. 12 (2002) (per

curiam)). 

Respondent’s amended petition for panel rehearing, filed

February 16, 2006, is DENIED and no further petitions for

rehearing will be considered.

YEGHIAZARYAN v. GONZALES 2435