BLD-142 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4503

___________

VAHAN MARTIROSYAN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

Petition for Review of an Order 

of the Board of Immigration Appeals

Agency No. A095 660 422

Immigration Judge: Margaret R. Reichenberg

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 11, 2010

Before: McKEE, Chief Judge, RENDELL and CHAGARES, Circuit Judges.

(Filed: May 20, 2010)

_________

OPINION OF THE COURT

_________

PER CURIAM

Vahan Martirosyan has filed a petition for review of a decision by the Board of

Immigration Appeals (“BIA”), which denied his motion to reopen his removal

proceedings. The government has filed a motion for summary denial of the petition for
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review. We will grant the motion and deny the petition for review.

Martirosyan is a citizen of Armenia. He entered the United States in 2004 as an

unaccompanied minor. He was charged with removal as an alien likely to become a

public charge and as an immigrant whose visa was issued without compliance with the

provisions of section 203 of the Immigration and Nationality Act. Martirosyan applied

for asylum and related relief, but on February 27, 2007, an Immigration Judge found him

to be removable, denied relief, and ordered his removal from the United States. On

October 3, 2008, the BIA dismissed Martirosyan’s appeal.

On March 27, 2009, Martirosyan filed a motion to reopen with the BIA. 

Martirosyan contended that the BIA failed to give proper weight to his youth at the time

of the hearing (age seventeen) when conducting its review of the IJ’s adverse credibility

finding. A motion to reopen must normally be filed within ninety days of a final order. 

8 C.F.R. § 1003.2(c)(2). The BIA noted that Martirosyan did not allege changed

circumstances in Armenia and thus did not satisfy the section 1003.2(c)(3)(ii) exception

to the time limit. The BIA also noted that the section 1003.2(c)(3)(iii) exception for a

joint motion was not met because the government opposed the motion. Moreover, the

BIA found no exceptional circumstance either to reopen the matter or, construing the

motion as a motion to reconsider, to reconsider the matter sua sponte. Accordingly, the

BIA denied as untimely Martirosyan’s motion to reopen and the construed motion to

reconsider.
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This petition for review followed. Martirosyan has filed a motion for a stay of

removal. The government has filed a motion for summary action and response in

opposition to the stay motion. Martirosyan has filed a response to the government’s

motion.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Guo v.

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). The BIA’s decision will be upheld unless it

was “arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994).

Martirosyan does not contest the BIA’s findings that his motion did not allege a

change in country conditions or that his motion was not “jointly filed” to show that a

regulatory exception to the time limitations was applicable. Instead, Martirosyan argues

that the BIA, in its October 3, 2008 decision, did not meaningfully address his youth at

the time of the hearing in assessing his credibility, and that this failure warranted

reconsideration. We disagree. The October 3, 2008 decision did address Martirosyan’s

arguments contesting the adverse credibility finding on the basis of his age. The BIA

specifically determined that his youth did not provide a reasonable explanation for the

inconsistency between his asylum application and his testimony. In particular, the BIA

referred to the absence of testimony regarding an incident described in Martirosyan’s

asylum application involving his having been detained and beaten by police and having

witnessed his mother being struck. Martirosyan suggests that the BIA should have taken
 The record reflects that Martirosyan’s date of birth was December 25, 1989. 1

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into account that many years elapsed between the time of the events in question and the

date of the hearing, and that children may be unable to present testimony concerning their

claims due to limited knowledge of their home country conditions, or because of cultural

reasons, maturity level, or other reasons. However, because those factors do not explain

why Martirosyan omitted from his testimony an event upon which his asylum application

was based, we conclude that the BIA did not abuse its discretion in denying the motion to

reopen or reconsider.

We add that Martirosyan argues that the agency “failed to recognize a legal

disability as an exception to the time limitation placed on a motion to reopen or

reconsider,” namely, the legal disability of being an unaccompanied minor. Petitioner’s

Opposition To Respondent’s Motion For Summary Denial at 3. We note that his

argument relies on an analogy between the filing of an asylum application and a motion to

reopen or reconsider, as he cites 8 C.F.R. § 1208.4(a)(5)(ii), a provision concerning

extraordinary circumstances for failing to meet the deadline for filing an asylum

application. In this case, where Martirosyan did not present this argument to the agency

as a basis for an exception to the applicable deadlines, we decline to entertain the

argument. In any event, we note that the application of any such exception would not be

warranted here, where Martirosyan does not claim that he was a minor or under a legal

disability at the time of the BIA’s October 3, 2008 decision.1
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Because this petition for review does not raise a substantial question, we grant the

government’s motion for summary action and will deny the petition for review. See

Third Circuit LAR 27.4 and I.O.P. 10.6. We also deny Martirosyan’s motion for a stay of

removal.