Unreported / Non-Citable
Background
Arsen Meliksetian, his wife Lusine Meliksetian, and their daughter G.M. (collectively, Petitioners) petitioned for review of a Board of Immigration Appeals (BIA) decision denying their untimely motion to reopen removal proceedings based on changed country conditions in Russia. The Petitioners, natives and citizens of Russia, previously applied for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge (IJ) denied relief based on an adverse credibility finding, which the BIA affirmed. This Court previously denied review of that decision, concluding the adverse credibility finding was supported by substantial evidence. Meliksetian v. Garland, No. 23-3849, 2025 WL 251424 (9th Cir. Jan. 21, 2025). Petitioners subsequently filed a motion to reopen, arguing that Meliksetian qualified for the changed country conditions exception to the 90-day filing deadline because he is a conscientious objector who fears criminal prosecution in Russia for draft evasion and treason following intensified military mobilization for the war in Ukraine. In support, Meliksetian submitted a Summons for Interrogation, a Compulsory Court Summons, and news articles documenting increased prosecution of draft evaders. The BIA denied the motion as untimely and found Meliksetian failed to establish the changed country conditions exception.
The Court’s Holding
The Ninth Circuit denied the petition for review, holding that the BIA did not abuse its discretion in denying the motion to reopen. The court concluded that Meliksetian's new claim was not independent of his previously discredited testimony. His motion relied on the same factual premise—that he feared removal because he did not want to 'die in an unjust war' and believed the war was 'very unjust'—which the IJ had found not credible. Because Meliksetian did not challenge the prior adverse credibility finding, he could not overcome it to establish a conscientious objection claim. The court reiterated that forced conscription or punishment for draft evasion generally does not constitute persecution on a protected ground. As Meliksetian failed to demonstrate prima facie eligibility for asylum, the BIA's denial of the motion to reopen was not arbitrary, irrational, or contrary to law. The court also denied the Petitioners' motion to stay removal.
Key Takeaways
- A motion to reopen based on changed country conditions requires the petitioner to demonstrate prima facie eligibility for the underlying relief sought.
- Where a prior adverse credibility finding remains unchallenged, a petitioner must show the new claim is independent of the discredited evidence to qualify for the changed country conditions exception.
- Fear of prosecution for draft evasion or conscientious objection claims based on discredited testimony regarding opposition to a specific war do not establish persecution on a protected ground.
- The BIA may rely on a previous adverse credibility determination to deny a motion to reopen if that finding factually undermines the new claim.
- The court reviews the BIA's denial of a motion to reopen for abuse of discretion, which requires the decision to be arbitrary, irrational, or contrary to law to be overturned.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's strict application of the 'independent claim' requirement for motions to reopen following an adverse credibility determination. It clarifies that a petitioner cannot circumvent a final credibility finding by reframing the same discredited subjective fear—opposition to a specific war—as a new claim based on changed country conditions (intensified mobilization) without independent, credible evidence of the underlying belief. The decision aligns with precedent holding that punishment for draft evasion, absent a credible claim of persecution on a protected ground such as political opinion or religion, does not warrant asylum. The ruling underscores the high bar for reopening removal proceedings after a final adverse credibility determination.
For practitioners, the order underscores the importance of matching the requested remedy and the governing standard to the case’s exact procedural posture. The result turns on the record described by the court and should not be read beyond the issues actually decided. Counsel should preserve alternative grounds, identify any unresolved questions, and document the facts needed under the applicable burden of proof.