             United States Court of Appeals
                        For the First Circuit

No. 11-2231

          ASHOT GASPARIAN; VERGINE GASPARIAN; HAIK GASPARIAN,

                             Petitioners,

                                  v.

                ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                              Respondent.


                PETITION FOR REVIEW OF AN ORDER OF THE
                     BOARD OF IMMIGRATION APPEALS


                                  Before
                           Lynch, Chief Judge,
                         Boudin, Circuit Judge,
                     and Woodlock,* District Judge.


     Randy Olen on brief for petitioners.
     Sabatino F. Leo, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Anthony P. Nicastro, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.



                           December 3, 2012




     *
         Of the District of Massachusetts, sitting by designation.
          BOUDIN, Circuit Judge.      Petitioners Ashot Gasparian,

Vergine Gasparian1 and Haik Gasparian2 are citizens and natives of

Armenia who were ordered removed from the United States following

the denial of their asylum claim in 1997.   They have resided in the

country since.   Last year, they filed a motion to reopen their

asylum claim; the Board of Immigration Appeals ("BIA") denied this

motion, and the petitioners brought a timely appeal to this court.

We begin by briefly discussing the factual background of the

Gasparians' initial asylum claim.

          Ashot and Vergine Gasparian are husband and wife who were

each born in Yerevan, Armenia, in 1950 and 1952, respectively.

They were married in 1979, and their son Haik Gasparian was born in

Yerevan, Armenia, in 1989.   As Ashot Gasparian testified before an

immigration judge, he ran a business in Armenia that sold shoes and

slippers. Between 1976 and 1978, Ashot Gasparian did business with

an Azerbaijani man that involved travels to Azerbaijan.     Armenia

had a tense relationship with Turkey, and many Armenians perceived

the Azerbaijani people as being close to Turkey.




     1
      In most documents in the record, Vergine is referred to by
her maiden name of Djirdjian or Djirdjiak. Because she identifies
herself as Vergine Gasparian in her brief to this court, we refer
to her by that name.
     2
      The record contains some alternative spellings for Haik
Gasparian's name, such as Halik or Hiak, but Haik appears to be the
preferred spelling, and that is the spelling he uses in the brief
to this court.

                                -2-
           Ashot    Gasparian   testified      that     for   years,    he   was

threatened by Armenians who were upset at him for his business

dealings   with    an   Azerbaijani    man,   even    after   those    business

dealings ended.         These threats took the form of phone calls

(including some in the middle of the night) and knocks on his door,

although his family apparently never met those who were making the

threats face to face.        The threats were to beat or harm Ashot

Gasparian, and after Haik Gasparian was born, they threatened to

kidnap Haik.

           Ashot Gasparian complained to the police once, but the

police indicated they could not stop the threats.             Ashot Gasparian

closed his business, and the family moved to a new neighborhood in

1990 or 1991; they received two or three threatening phone calls at

their new residence, but no knocks on their door.                None of the

family members was ever physically harmed.                However, in 1992,

Vergine and Haik Gasparian entered the United States on visitor

visas and Ashot Gasparian did so in 1993.

           Each overstayed and Ashot Gasparian admitted that return

to Armenia was never intended.          The Gasparians settled in Rhode

Island.    Since around 1995 or 1996, Ashot Gasparian and his wife

have been employed at a jewelry company.             Haik Gasparian attended

Rhode Island public schools, graduated from high school, and is now

enrolled in college; he also works as a cook at a pizza restaurant.




                                      -3-
          In December 1994, Ashot Gasparian filed a request for

asylum and withholding of removal on behalf of himself, his wife,

and his son.   Although the initial asylum form contained a false

story that the family was persecuted because Vergine Gasparian was

Azerbaijani, Vergine Gasparian stated in an affidavit that the

false asylum application was filled out by a lawyer in California,

and that Ashot Gasparian was unaware of the falsehoods because he

did not speak or read English.   At the hearing, both testified to

the facts stated above.

          On November 7, 1995, the Immigration Judge ("IJ") denied

the Gasparians' applications for asylum and withholding of removal.

The IJ expressed doubt about the claim of harassment through the

early 1990s for business activities ending in 1978 but concluded in

any event that the threats did not lead to harm nor were the

threateners connected to the government.    The Gasparians appealed

to the BIA but gave no substantive reasons and filed no brief, so

the appeal was summarily dismissed in March 1997, with the BIA

allowing 30 days for voluntary departure.   The Gasparians filed a

motion to reopen their proceedings in January 1998, but the BIA

dismissed the motion as untimely.

          The Gasparians ignored the BIA's order to depart and

continued living in Rhode Island undisturbed until, in May 2011,

they filed a second motion to reopen their proceedings along with

renewed applications for asylum, withholding of removal, and relief


                                 -4-
under the Convention Against Torture ("CAT"). Their motion, citing

news articles about increasing diplomatic and military tensions

between Armenia and Azerbaijan, argued that the potential for war

constituted changed circumstances making it more likely that the

Gasparians would be persecuted for perceived sympathy to Turks and

Azerbaijanis; the motion also noted that the 2009 State Department

Human Rights Report for Armenia indicated widespread human rights

abuses.

            In September 2011, the BIA denied the motion to reopen.

The BIA stated that the Gasparians had shown changed circumstances

in Armenia, but they had not shown that those changes would be

material to their claims.          The BIA noted that Ashot Gasparian's

dealings with Azerbaijanis had ended over thirty-two years ago, and

there was no indication that Armenians were still interested in

harassing his family after eighteen years living in the United

States.    The Gasparians brought a timely appeal to this court.

            Motions to reopen ordinarily must be filed within ninety

days of the BIA decision, 8 C.F.R. § 1003.2(c)(2) (2012), but they

can   be   filed    later    if   supported   by   previously    unavailable

information        showing        material     changed     circumstances,

id. § 1003.2(c)(3)(ii); Raza v. Gonzales, 484 F.3d 125, 127 (1st

Cir. 2007).        But the new evidence "must, at a bare minimum,

establish a prima facie case sufficient to ground a claim of

eligibility for the underlying substantive relief."             Le Bin Zhu v.


                                      -5-
Holder, 622 F.3d 87, 92 (1st Cir. 2010) (internal quotation marks

omitted).   Here, the BIA's assessment was within its authority and

was neither arbitrary nor flawed by any error of law.           See Aponte

v. Holder, 683 F.3d 6, 10 (1st Cir. 2012).

            The possibility of war between Armenia and Azerbaijan was

speculative and, even if tensions might enhance the likelihood of

harm to perceived sympathizers of Turkey and Azerbaijan, the old

threats against petitioners lay over thirty years in the past and

they had been absent from the country for almost twenty.           The BIA

was not required to suppose that the threats were now likely to be

renewed let    alone   that   they   would be translated    into   action

amounting to persecution.3      The new evidence gives no substantial

support to asylum, withholding of removal or CAT relief.

            The Gasparians request that even if the denial of their

motion to reopen is upheld, we "issue an order directing the

Government to state whether it will exercise its prosecutorial

discretion . . . to cancel or otherwise terminate the removal

proceedings against this family."          Appellants' Br. 7.   They rely

primarily upon a June 2011 memorandum, known popularly as the




     3
      Nor does the State Department report indicate that the
Gasparians will be singled out. Meguenine v. INS, 139 F.3d 25, 29
(1st Cir. 1998) ("[G]eneral fears (even 'well-founded' ones) of
future harm from political upheaval or terrorist violence are not
sufficient to establish eligibility for asylum . . . .").

                                     -6-
Morton    Memo,4     which    lists      various   factors    that    immigration

officials should consider in deciding whether to refrain from

bringing proceedings against or removing aliens.                     Although the

immigration statutes do not confer jurisdiction on this court to

review    acts      of     prosecutorial        discretion,   Immigration        and

Nationality Act § 242(g), 8 U.S.C. § 1252(g) (2006), we have

sometimes asked the government to advise us of its intentions one

way or the other.

            Ashot and Vergine Gasparian appear to be sympathetic

candidates, having lived here for a good many years, with Vergine

Gasparian's sister's family living in Rhode Island as permanent

residents, and with stable employment and nothing that would

necessarily prevent an exercise of prosecutorial discretion in

their favor.       But they also fit none of the categories identified

in the Morton Memo as warranting "prompt particular care and

consideration."       Morton Memo, supra, at 5.

            Our inquiries have, in the past, been limited to cases

where the exercise of discretion seemed reasonably likely, such as

for   aliens   who       entered   the   country    as   children    or   who   have




      4
      Morton, Dir., U.S. Immigration & Customs Enforcement,
Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens (June 17, 2011),
a     v     a    i    l     a    b     l    e             a     t
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-di
scretion-memo.pdf.

                                          -7-
dependent United States citizen children.5       Making these inquiries

routine would not only add to delay but deprive them of any

significance.    Of   course,   since   the   1997   removal   order,   the

government has taken no action to physically remove Ashot and

Vergine Gasparian.    It might seem peculiar to alter the status quo

because they voluntarily sought further relief, presumably hoping

to regularize their status.     Nothing prevents the government from

providing the forbearance they now seek.

          Haik Gasparian has a more promising chance for relief

under the Morton Memo, having entered the United States as a young

child and pursued his education in this country, and being beyond

blame for remaining in the country despite the BIA's removal order.

He may also qualify for deferred action under a new program

announced in June 2012 for immigrants who meet certain conditions

including entry into the country as children, schooling or military

service, and lack of a serious criminal record.         Consideration of

Deferred Action for Childhood Arrivals Process, U.S. Citizenship &

Immigration Servs., http://www.uscis.gov/childhoodarrivals (last

updated Sept. 14, 2012).

          This new June 2012 program, although seemingly tailored

for individuals like Haik Gasparian, requires an application by


     5
      See, e.g., Order, Sierra-Pena v. Holder, No. 11-1585 (1st
Cir. May 22, 2012); Order, Ni v. Holder, No. 11-1518 (1st Cir. Feb.
14, 2012); Order, Arriaza v. Holder, No. 10-1532 (1st Cir. Jan. 24,
2012); Order, Arevalo v. Holder, No. 10-2483 (1st Cir. Dec. 12,
2011).

                                  -8-
him, and acceptance of an applicant depends on an exercise of

discretion. Although the BIA's refusal to reopen must be affirmed,

we will stay the mandate as to Haik Gasparian for 90 days to allow

him to apply for relief; although we cannot order the government to

defer removal after the mandate issues, we assume that it is

unlikely to    preempt   the   application   if    it believes   that the

application has any chance of success.

            As described above, we would not ordinarily offer similar

relief to    petitioners   such as   Ashot   and    Vergine   Gasparian.

However, because they are the parents of a young adult who appears

to be a strong candidate for deferred action, the government may

well wish to avoid splitting up the family by declining to remove

them as well.     To ensure that they are not removed before the

government has time to consider the question, we also stay the

mandate for 90 days as to Ashot and Vergine Gasparian.

            It is so ordered.




                                   -9-
