                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            SEP 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


NSHAN AYANIAN,                                   No. 11-70332

              Petitioner,                        Agency No. A077-310-327

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

              Respondent.


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

                            Submitted September 9, 2015**
                                Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges and CARR,*** Senior District
Judge.

      Petitioner Nshan Ayanian petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his motion to reopen. We deny the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
      1. The BIA did not abuse its discretion in denying Ayanian’s untimely

motion to reopen his removal proceedings. In order to merit reopening under the

changed circumstances exception to the filing deadline for motions to reopen,

Ayanian bore the burden of showing that his evidence of changed country

conditions “is material and was not available and would not have been discovered

or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii); 8

C.F.R. § 1003.2(c)(3)(ii). The BIA acted within its discretion when concluding

that the evidence Ayanian presented to support his motion is immaterial to his

claims for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT).1 While Ayanian’s evidence suggests mistreatment of

both draft evaders and military conscripts, see also Muradin v. Gonzalez, 494 F.3d

1208 (9th Cir. 2007), it was not “irrational, arbitrary, or contrary to law” for the

BIA to conclude that he did not show that the Armenian government would

consider him to be either a draft evader or a conscript. See Go v. Holder, 744 F.3d

604, 609 (9th Cir. 2014). Moreover, Ayanian failed to show that the Armenian




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          We also GRANT the government’s motion to strike the portions of
Ayanian’s brief that rely on the 2010 U.S. State Department Report, which is not
part of the Certified Administrative Record. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he
court of appeals shall decide the petition only on the administrative record . . . .”).

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government would acquiesce to any alleged future torture at the hands of money

lenders.

      2. We lack jurisdiction to consider Ayanian’s remaining arguments because

he did not raise them before the BIA. 8 U.S.C. § 1252(d); Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (“Before a petitioner can raise an

argument on appeal, the petitioner must first raise the issue before the BIA or IJ.”).

We also cannot address Ayanian’s concerns with the adjudication of his original

applications for asylum, withholding of removal, and CAT relief because that case

is already final, see Ayanian v. Gonzales, 165 F. App’x 520 (9th Cir. 2006), and

only the denial of his motion to reopen is properly before us.

      PETITION DENIED IN PART, DISMISSED IN PART.




                                           3
Ayanian v. Lynch, No. 11-70332             FILED
PREGERSON, Circuit Judge, dissenting:      SEP 16 2015
                                        MOLLY C. DWYER, CLERK
                                         U.S. COURT OF APPEALS
     I would grant the petition.




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