NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN SARKSIAN,

Petitioner,

v.
MERRICK B. GARLAND, Attorney General,

Respondent. No. 17

- 70276

Agency No. A078

- 528

- 835

MEMORANDUM *

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. 

# FILED

FEB 24 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

a n untimely motion to reopen based on allegedly change d country conditions in

Armenia. We review the denial of a n 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. A n 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)

( q uoting Azanor v. Ashcroft , 364 F.3d 1013, 1021

– 10 22 (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

e vidence 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 c ountry r eports on Armenia and Azerbaijan. But Sarksian’s3

testimony concerned events that happened in the 1990s

— the evidence that was

actually used and considered at his initial asylum hearing. Thus, th at evidence

cannot demonstrate changed country conditions or sa tisfy t he requirement that it was

previously unavailable

. See 8 C.F.R. § 1003.2(c)(3)(ii). Sark sian 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 dis proportionately punish e s A zeris for this crime. Indeed,
we have long made clear that “[a]lthough the BIA must accept the truth of the facts

asserted in an alien’s affidavit
, the affidavits must be based on s pecific facts, not

mere conclusions.” Agustin v. INS , 700 F.2d 564, 565 (9th Cir. 1983) (per curiam)

(citation omitted)

.
The media reports also do not amount to material evidence. T hree of the

articles concern violence and displacement in Azerbaijan, not Armenia, and a nother

article describe s the torture of Azeri nationals by Armenia during the so

- called
“Bloody War” between the countries
, which took place in the late 1980s. N one of

this evidence demonstrates changed country conditions ref lecting that non

combatant, ethnic Azeris, like Sarksian, are currently tortured or killed in Armenia.

Lastly, the S tate Department reports concerning Armenia and Azerbaijan do

not show material evidence of changed country conditions . Sarksian primarily relies

on the 2015 Country Report on Human Right Practices for Armenia
, which4

described brutal police tactics used in arresting and interrogating citizens, poor

prison conditions, and a failure of the legal system to provide fair trials. But the

country report do es not raise a concern for the persecution of Azeris in Armenia

.
As a result , the BIA did not abuse its discretion in finding that Sarksian’s

evidence was not sufficiently material to justify reopening under 8 C.F.R. §
1003.2(c)(3)(ii). See Najmabadi , 597 F.3d at 989.

2. Nor did the BIA abuse its discretion in determining that Sarksian ’s new

evidence would not entitle him to relief. Similar ly to the materiality requirement,

establishing a well

- founded fear of future persecution requires that “ the alien show

that he faces a particularized threat of persecution.” See Kotasz v. INS , 31 F.3d 847,

851

– 852 (9th Cir. 1994) (emphasis added)

. A “petitioner cannot simply prove that

there exists a generalized or random possibility of persecution in his native country;
he must show that he is at particular risk.” Id. at 852. Thus, f or the same reasons

the BIA did not abuse its discretion in finding that Sar ksian’s evidence did not satisfy

the materiality requirement, the BIA did not abuse its discretion in concluding that

Sarksian f

ailed to provide individualized evidence to demonstrate a well

- founded

fear of persecution. See id.

DENIED.