ARTEM MKRTCHIAN, AKA Artem Mkdrtchian v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTEM MKRTCHIAN, AKA Artem
Mkdrtchian,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71063
Agency No. A072-286-001
MEMORANDUM*
ARTEM MKRTCHIAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72531
Agency No. A072-286-001
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted November 16, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,*** District
Judge.
Artem Mkrtchian, a native and citizen of Armenia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) denials of a motion to reopen his
withholding proceedings (No. 19-71063) and a motion to reopen his reinstated
removal order (No. 19-72531). We have jurisdiction under 8 U.S.C.
§§ 1252(a)(1), (b)(6). We review for abuse of discretion the BIA’s denial of a
motion to reopen. Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). We deny the
petitions.1 Because the parties are familiar with the factual and procedural history
of the cases, we need not recount it here.
I
In 19-71063, the BIA did not err in denying Mrktchian’s motion to reopen
his withholding proceedings on the basis of ineffective assistance of counsel. A
motion to reopen must be filed within 90 days of a final order of removal. 8
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
1 In 19-71063, we deny the motion to stay removal (Docket No. 1) and the
supplemental motion to stay removal (Docket No. 6).
2

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U.S.C. § 1229a(c)(7)(C)(i). A party may make one motion to reopen.
Id. § 1229a(c)(7)(A). However, where a noncitizen’s attorney “engaged in
fraudulent activity causing an essential action in her client’s case to be undertaken
ineffectively, out of time, or not at all, equitable tolling is available.” Iturribarria
v. INS, 321 F.3d 889, 898 (9th Cir. 2003). Without equitable tolling, Mkrtchian’s
motion to reopen is time- and number-barred.
To determine whether equitable tolling is available, we consider the merits
of Mkrtchian’s ineffective-assistance-of-counsel claim. To prevail, the petitioner
must demonstrate that (1) counsel failed to perform with sufficient competence and
(2) petitioner was prejudiced by his counsel’s performance. See Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). To establish prejudice in the context
of a motion to reopen, “the petitioner need only demonstrate that counsel’s
deficient performance ‘may have affected the outcome of the proceedings’ by
showing ‘plausible’ grounds for relief.” Flores v. Barr, 930 F.3d 1082, 1087 (9th
Cir. 2019) (citation omitted).
Mkrtchian has not established prejudice. First, Mkrtchian is not entitled to
the presumption of prejudice because he did not present record evidence to the BIA
that his counsel’s erroneous advice prevented him from filing a timely petition for
review. Cf. Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir.
3

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2000) (noting that prejudice is presumed where a noncitizen “is prevented from
filing an appeal in an immigration proceeding due to counsel’s error”). Second,
Mkrtchian has not shown prejudice because he failed to demonstrate in the motion
to reopen that he would have a “plausible” claim for withholding or CAT relief.
See Flores, 930 F.3d at 1087. As a result, Mkrtchian’s motion to reopen is time-
and number-barred and is ineligible for equitable tolling. For the same reason, the
BIA did not err in refusing to reissue its prior withholding ruling.
II
In 19-72531, Mkrtchian seeks to reopen his reinstated removal order. DHS
may reinstate a prior order of removal if it finds that (1) petitioner is a noncitizen,
“(2) who was subject to a prior removal order, and (3) who illegally entered the
United States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007)
(en banc); see also 8 U.S.C. § 1231(a)(5). A reinstated removal order “is not
subject to being reopened or reviewed.” § 1231(a)(5); Cuenca v. Barr, 956 F.3d
1079, 1088 (9th Cir. 2020).
The BIA correctly determined that the IJ had no jurisdiction to adjudicate
Mkrtchian’s motion to reopen. While a noncitizen may timely petition for review
of a reinstated removal order on several grounds, the noncitizen may not present
4

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those grounds for review in a motion to reopen. Bravo-Bravo v. Garland, 40 F.4th
911, 914–15 (9th Cir. 2022).
PETITIONS DENIED.
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