                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 13 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


MIHRAN SMBATYAN,                                 No. 12-72458

              Petitioner,                        Agency No. A096-362-836

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

              Respondent.


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

                            Submitted November 4, 2015**
                                Pasadena, California

Before: FARRIS, TASHIMA, and BYBEE, Circuit Judges.

      Mihran Smbatyan petitions for review of the Board of Immigration Appeals’

denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We

review the B.I.A.’s denial of a motion to reopen for abuse of discretion. See



        *
             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).
Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition

for review.

      The B.I.A. correctly denied Smbatyan’s ineffective assistance of counsel

claim. It was untimely and Smbatayn failed to show prejudice. See 8 C.F.R.

§ 1003.2(c)(2) (motions to reopen must be made within ninety days); Mohammed,

400 F.3d at 793 (ineffective assistance of counsel claims require deficient conduct

and prejudice).

      Smbatyan filed his motion to reopen six years too late. He was not entitled

to equitable tolling where: (1) he did not consult another immigration lawyer about

his case; (2) he only found out about the possibility of a motion to reopen by

chance; and (3) he waited an undisclosed length of time, even after discovering the

possibility of reopening his case, in order to gather funds to pay a lawyer.

      Smbatyan also failed to show that the outcome of his immigration case

might have been different but for his attorney’s ineffectiveness. Smbatyan could

not point to any actual mistakes in the English declarations that he claims his

attorney was ineffective for submitting. Nor could he point to any specific legal

arguments that his attorney failed to raise on appeal. Although Smbatyan claimed

his attorney should have done more on appeal to attack the IJ’s adverse credibility




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determination, the B.I.A. correctly found that such an attack would have been

unsuccessful even if mounted.

      The B.I.A. also correctly denied Smbatyan’s motion to reopen based on

changed country conditions. At his removal hearing, Smbatayn himself submitted

substantial evidence of violent anti-gay sentiment in Armenia. Given this, the

B.I.A. did not abuse its discretion in finding that a single article that stated that

hostilities towards gay men had “increased” did not show that conditions in

Armenia had changed since the removal hearing. In addition, the B.I.A. correctly

held that, even if Smbatyan had shown changed country conditions, they could not

be material when Smbatyan was denied relief based on an adverse credibility

determination that would be unaffected by changed conditions in Armenia. See

Feng Gui Lin v. Holder, 588 F.3d 981, 986 (9th Cir. 2009) (changes in country

conditions must be material).

      DENIED.




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