                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            OCT 20 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ALBERT MELIKIAN, et al.,                         Nos. 11-70434 & 15-71235

               Petitioner,                       Agency Nos. A078-371-088,
                                                 A096-154-743, A096-154-744,
  v.                                             A096-154-745

LORETTA E. LYNCH, Attorney General,
                                                 MEMORANDUM*
               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted October 3, 2016**
                                Pasadena, California

Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,*** District
Judge.

       Albert Melikian, a native of Iran and citizen of Armenia, his wife Narine

Ter-Barseghyan, a native and citizen of Armenia, and their children, Arpi

         *
             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 Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
Melikyan and Arman Melikyan, natives and citizens of Armenia, seek review of

two final orders of the Board of Immigration Appeals (“BIA”).1 The first order

dismissed petitioners’ appeal from the Immigration Judge’s (“IJ”) decision denying

their applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) on the ground that petitioners had not

provided a credible account of persecution and finding that petitioners had filed

frivolous asylum applications. The second order denied petitioners’ motion to

reopen the administrative proceedings. We have jurisdiction under 8 U.S.C. § 1252

and deny both petitions.2

      1.     The agency did not abuse its discretion in denying petitioners’ motion

to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). Petitioners

concede that their motion was untimely but argue that the BIA should have applied

equitable tolling to extend the limitations period based on their claim of ineffective

assistance of counsel. Equitable tolling may be appropriate in the context of an


      1
        The children are named as derivative beneficiaries on their mother’s
application for asylum and withholding of removal. On October 20, 2016, we
granted the government’s unopposed motion to sever Arpi Melikyan and Arman
Melikyan and remand their petitions for review. Accordingly, our disposition here
affects only the claims of Albert Melikian and Nadine Ter-Barseghyan.
      2
        This case is not governed by the REAL ID Act of 2005, Pub. L. No. 109-13
(2005), because petitioners filed their applications for asylum and withholding of
removal before May 11, 2005.
                                           2
ineffective assistance of counsel claim if the petitioner exercises due diligence to

discover and remedy counsel’s errors. Avagyan v. Holder, 646 F.3d 672, 677 (9th

Cir. 2011). Here, petitioners offer no explanation for why they waited three years

after discovering their ineffective assistance of counsel claim to file their motion to

reopen.

      2.     Petitioners have not challenged the IJ’s adverse credibility finding.

Accordingly, the issue is waived. See Castro-Perez v. Gonzales, 409 F.3d 1069,

1072 (9th Cir. 2005). The adverse credibility determination disposes of all of

petitioners’ substantive claims. See 8 C.F.R. § 1208.13(a); 8 C.F.R. §

1208.16(c)(2).

      3.      The agency applied the correct procedural framework when it

determined that petitioners’ asylum petitions were frivolous. See Ahir v. Mukasey,

527 F.3d 912, 917 (9th Cir. 2008). The IJ correctly concluded that petitioners had

notice of the consequences of filing a frivolous application based on the printed

warning on the face of the applications they signed. See Cheema v. Holder, 693

F.3d 1045, 1046 (9th Cir. 2012); 8 C.F.R. § 208.3(c)(2).

      The IJ correctly found that petitioners filed a frivolous asylum application,

stating that they “not only knowingly but concededly fabricated incidents of

persecution and submitted fraudulent documents.” (Emphasis in original).


                                           3
Substantial evidence supports this finding. Sidhu v. INS, 220 F.3d 1085, 1088 (9th

Cir. 2000). Petitioners admit in declarations filed in their administrative appeal to

providing false testimony and documents before the IJ. The IJ also correctly found

petitioners’ attempt to blame their attorney and others for these and other

fabrications not credible.

      4.     The IJ did not violate petitioners’ due process rights, either by

refusing to hold a hearing on their ineffective assistance of counsel claim or by

refusing to hold a hearing on their revised claims for relief. To establish a due

process violation, petitioners must show that they were denied a full and fair

hearing on their claims, and that they suffered prejudice as a result. Cruz Rendon v.

Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). The record does not support

petitioners’ argument that the IJ “refused” to hold a hearing on the ineffective

assistance claim.

      Petitioners also have not shown that the IJ violated their due process rights

by refusing to consider new evidence and testimony on their revised asylum

claims. The IJ correctly concluded and petitioners do not dispute that an alien

whose original application for asylum is found to be frivolous is barred from

seeking to reopen proceedings. See 8 C.F.R. § 1003.23(b)(4)(i). This finding, along

with the IJ’s well-supported adverse credibility finding on their original claims,


                                           4
eviscerated petitioners’ ability to establish an entitlement to relief on their revised

claims. See Kaur v. Gonzales, 418 F.3d 1061, 1065 (9th Cir. 2005).

PETITIONS FOR REVIEW DENIED.




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