                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 13-3931
                                    ___________

                             MIKAYEL POGHOSYAN,
                                         Petitioner

                                          v.

        ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                   Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                           (Agency No. A095-476-171)
                     Immigration Judge: Honorable R.K. Malloy
                     ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                               February 19, 2014
      Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

                          (Opinion filed: February 26, 2014)
                                    ___________

                                     OPINION
                                    ___________

PER CURIAM

      Mikayel Poghosyan petitions for review of an order of the Board of Immigration

Appeals (BIA) denying his motion to reopen. For the reasons detailed below, we will
deny the petition for review.

       Poghosyan is a citizen of Armenia. He was admitted to the United States in July

2001 as a nonimmigrant visitor, and in June 2002, filed applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT). The

Department of Homeland Security then issued a notice to appear, charging that

Poghosyan was removable under 8 U.S.C. § 1227(a)(1)(B) as an alien who had stayed in

the United States longer than permitted.

       Poghosyan appeared before an Immigration Judge (IJ) and testified in support of

his applications. He claimed that opponents of the politician Vano Syryaderyan believed

that Poghosyan worked for and was loyal to Syryaderyan. Based on this belief,

Poghosyan testified, these individuals beat him, harassed him, and caused him twice to

fail an examination to become a police officer.

       The IJ concluded that Poghosyan had not testified credibly and thus denied all

relief to him. The credibility determination was based in part on the IJ’s evaluation of a

newspaper article that Poghosyan had submitted, which purported to show that he was

hated in Armenia. The government forwarded the article to the American Consulate in

Armenia to assess its veracity; the investigator was unable to find any record whatsoever

of the newspaper, which the IJ concluded reflected negatively on Poghosyan’s credibility.

Poghosyan appealed to the BIA, which dismissed his appeal. The BIA perceived no error

in the IJ’s credibility determination, including the IJ’s analysis of the newspaper article.

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Poghosyan then filed a petition for review to this Court, which we denied in May 2008.

See Poghosyan v. Att’y Gen., 276 F. App’x 254 (3d Cir. 2008).

       Poghosyan was removed to Armenia on August 12, 2009, and returned to the

United States without permission three months later. In July 2013, he filed the motion to

reopen that is at issue here. That motion concerns, in large part, the newspaper article

discussed above. Poghosyan stated that the newspaper article had been mistranslated;

that is, while the original translation stated that the newspaper was published in the

Armenian capital city of Yerevan, it was actually published in the nearby city of

Ashtanak. Thus, Poghosyan argued, the investigator’s failure to find any record of the

newspaper was the result of his searching in the wrong city. In addition to a re-translated

version of the newspaper article, Poghosyan also submitted documentation concerning

current conditions in Armenia.

       The BIA denied Poghosyan’s motion, concluding that it was untimely and did not

qualify for any exception to the general time limitation. More specifically, the BIA ruled

that Poghosyan had failed to present material evidence of changed country conditions in

Armenia; that the re-translated newspaper article did not qualify as “new or previously

unavailable evidence”; that the agency’s previous credibility determination had not been

based solely on the newspaper article; and that Poghosyan had not presented an

exceptional situation that warranted sua sponte reopening. Poghosyan then filed a timely

petition for review.

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       We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the BIA’s denial of

Poghosyan’s motion to reopen for abuse of discretion. See Borges v. Gonzales, 402 F.3d

398, 404 (3d Cir. 2005). Motions to reopen are “plainly disfavor[ed],” because “[t]here is

a strong public interest in bringing litigation to a close as promptly as is consistent with

the interest in giving the adversaries a fair opportunity to develop and present their

respective cases.” INS v. Abudu, 485 U.S. 94, 107, 110 (1988). The BIA’s decision is

thus entitled to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003) (quotation marks omitted), and it “will not be disturbed unless [it is] found to be

arbitrary, irrational, or contrary to law,” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004) (quotation marks omitted).

       Here, because Poghosyan did not file his motion to reopen within 90 days of the

final order of removal, he may proceed only if his motion relies on evidence of “changed

country conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Such a motion must be based on

“evidence [that] is material and was not available and would not have been discovered or

presented at the previous proceeding.” Id.

       The BIA did not err in denying Poghosyan’s motion to reopen. Poghosyan spends

the majority of his brief arguing that the BIA abused its discretion by refusing to reopen

the case sua sponte; however, “[b]ecause the BIA retains unfettered discretion to decline

to sua sponte reopen or reconsider a deportation proceeding, this court is without

jurisdiction to review a decision declining to exercise such discretion to reopen or

                                              4
reconsider the case.” Desai v. Att’y Gen., 695 F.3d 267, 269 (3d Cir. 2012) (quotation

marks omitted). While there are two narrow exceptions to this rule — a decision to deny

sua sponte relief can be reviewed if it is based on an incorrect legal premise, see id., or if

the BIA has “restricted the exercise of its discretion by establishing a ‘general policy’ of

reopening sua sponte” under specific circumstances, Cruz v. Att’y Gen., 452 F.3d 240,

249 (3d Cir. 2006) — neither exception applies here. Therefore, we will dismiss

Poghosyan’s petition insofar as it challenges the BIA’s decision not to reopen sua sponte.

       Poghosyan next objects to the BIA’s rejection of his claim of changed country

conditions. We discern no error in the BIA’s conclusion that he failed to present the

requisite “evidence [that] is material and was not available and would not have been

discovered or presented at the previous proceeding.” § 1229a(c)(7)(C)(ii). As an initial

matter, it was reasonable for the BIA to conclude that the evidence concerning current

conditions in Armenia was not “material” because it did not rebut the agency’s prior

adverse credibility finding. See Khan v. Att’y Gen., 691 F.3d 488, 497 (3d Cir. 2012).

Further, while the re-translated newspaper article does bear on Poghosyan’s credibility, it

was reasonable for the BIA to conclude that this evidence was available and could have

been presented at the initial hearing. It was Poghosyan who submitted the article with the

faulty translation, and the article’s provenance was discussed (and briefed) before the IJ;

the BIA did not abuse its discretion in concluding that the correct translation could have

been presented at that time. See Krougliak v. INS, 289 F.3d 457, 460 (7th Cir. 2002).

                                              5
       Finally, Poghosyan contends that the BIA violated his due process rights. To

prove such a claim, Poghosyan “must show that he was prevented from reasonably

presenting his case.” Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (quotation

marks omitted). Poghosyan, however, identifies no deficiency in the procedures the BIA

employed in the reopened proceedings. In essence, Poghosyan simply disagrees with the

BIA’s holding, and is “cloth[ing] [that argument] in the garb of due process.” Jarbough

v. Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007). His challenges to the merits of the

BIA’s decision fail for the reasons detailed above. To the extent that he asserts that his

due process rights were violated in the underlying hearing, we lack jurisdiction to

consider that claim. See Stone v. INS, 514 U.S. 386, 405 (1995); Ke Zhen Zhao v. U.S.

Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

       Accordingly, we will dismiss Poghosyan’s petition for review in part and deny it

in part.




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