Marietta Manassian v. Eric Holder, Jr.

Filing

OPINION filed : We DENY Manassian's petition for review, decision not for publication. Danny J. Boggs, Circuit Judge; Karen Nelson Moore, AUTHORING Circuit Judge and Michael R. Barrett, U.S. District Judge for the Southern District of Ohio.

Case: 13-3326

Document: 006111954969

Filed: 02/04/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATON
File Name: 14a0097n.06
No. 13-3326

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARIETTA GARNIK MANASSIAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Feb 04, 2014
DEBORAH S. HUNT, Clerk

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

OPINION

Before: BOGGS and MOORE, Circuit Judges; BARRETT, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Marietta Garnik Manassian petitions this
court to review a denial of her asylum application by an immigration judge (“IJ”) and the Board
of Immigration Appeals (“BIA”).1 The IJ and BIA denied the asylum application as having been
filed beyond the one-year deadline as well as on the merits. Manassian argues that changed
personal circumstances—denial of an I-130 petition on her behalf—excuses the delay in filing
and that asylum should have been granted. Because the denial of an I-130 petition is not a
change in circumstances within the meaning of the Immigration and Nationality Act (“INA”), we
DENY the petition for review.

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The Honorable Michael R. Barrett, United States District Judge for the Southern District
of Ohio, sitting by designation.
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Manassian had also applied for withholding of removal and voluntary departure. The IJ
granted voluntary departure while denying the other forms of relief. Manassian appealed to the
BIA the denial of her asylum and withholding of removal applications. In her brief to this court,
Manassian challenges only the BIA’s denial of her asylum application.

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I. BACKGROUND
Marietta Garnik Manassian, a citizen of Armenia, entered the United States in 1993 with
her then-husband and two children on a J-2 visa as the wife of a J-1 exchange visitor.
Administrative Record (“A.R.”) at 10 (Oral Decision of the IJ (“Oral Dec.”) at 2). The family
adjusted status when Manassian’s husband became an H-1B visa holder in 1996. Id. In 1997,
Manassian’s husband left the United States to return to Armenia, leaving Manassian and their
daughters behind. Pet’r’s Br. at 13. Manassian’s authorization to remain in the United States
was set to expire in 1999. A.R. at 10 (Oral Dec. at 2). Manassian and her husband divorced, and
Manassian’s ex-husband committed suicide in Armenia in 2006. Pet’r’s Br. at 13.
In 2001, Manassian married Todd Dana Greenfield, a United States citizen. Id. at 14.
Greenfield filed I-130 petitions on behalf of Manassian and her daughters. Id. These I-130
petitions were denied in October 2007 for failure to appear for a follow-up interview. A.R. at 12
(Oral Dec. at 4). Manassian learned of this denial on December 3, 2007. Pet’r’s Br. at 11.
Manassian and her daughters were placed in removal proceedings. Id. Manassian filed her
application for asylum and withholding of removal on July 9, 2008. A.R. at 12 (Oral Dec. at 4).
As part of her asylum application, Manassian alleged that her ex-husband’s family
blamed her for his suicide. Id. at 11–12 (Oral Dec. at 3–4). Particularly, her ex-husband’s
nephew had issued threats that he would make her life a living hell by telling everyone that she
was an American spy and part of the Armenian opposition political party in America. Id. This
nephew, according to Manassian, was a high-ranking officer in the corrupt Armenian national
police force. Id.

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The IJ denied Massanian’s asylum application as being untimely. Id. at 11 (Oral Dec.
at 3).

She found that the changed circumstances—the ex-husband’s death—that led to

Manassian’s alleged fear of returning to Armenia arose in January 2006. Id. at 13 (Oral Dec.
at 5). The IJ rejected Manassian’s argument that the denial of the I-130 petition was a qualifying
type of changed circumstances under the INA or accompanying regulations. Id. Therefore, the
IJ decided that the asylum application was untimely. Id. at 13–14 (Oral Dec. at 5–6). The IJ also
determined that, even if the asylum application were timely, Manassian failed to establish a wellfounded fear of persecution and failed to prove that the persecution was based on one of the
protected grounds. Id. at 21–23 (Oral Dec. at 13–15). Consequently, the IJ concluded that
Manassian was not entitled to asylum. Id. at 24 (Oral Dec. at 16).
The BIA dismissed Manassian’s appeal, agreeing with the IJ that the denial of an I-130
petition does not constitute the type of changed circumstances excusing an untimely asylum
application. A.R. at 3–5 (Decision of the BIA at 1–3).
This petition for review timely followed.
II. JURISDICTION
We have jurisdiction to review “asylum applications denied for untimeliness” “when the
appeal seeks review of constitutional claims or matters of statutory construction,” but not “when
the appeal seeks review of discretionary or factual questions.” Almuhtaseb v. Gonzales, 453 F.3d
743, 748 (6th Cir. 2006). Here, the parties are not in dispute over the factual issues. The dispute
is whether the denial of an I-130 petition constitutes the type of changed circumstances excusing
an untimely asylum application. The IJ found that Manassian’s “reliance on a potential legal
status . . . [is] not the type of changed circumstances contemplated by the Statute or the

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accompanying Regulation.”

A.R. at 13 (Oral Dec. at 5).

This finding by the IJ is an

interpretation of the statute and regulation—whether such type of event could be a changed
circumstance interprets the statute and regulation—rather than a discretionary decision—whether
this particular event constitutes changed circumstances in this case.

Thus, this court has

jurisdiction to review whether the IJ erred in determining that a potential legal-status change is
not the type of changed circumstance contemplated by the statute.
III. CHANGED PERSONAL CIRCUMSTANCES
Manassian argues that the denial of the I-130 petition, by making her subject to removal,
was “a change in her circumstances allowing her to file her application [for asylum] within a
reasonable time.” Pet’r’s Br. at 20. This alleged change in her personal circumstance is the only
ground that Manassian puts forward to justify the lateness of her application. Therefore, it is the
only ground that this panel considers.
Under the INA, asylum applications typically must be filed within one-year of arrival in
the U.S. See 8 U.S.C. § 1158(a)(2)(B). A late application “may be considered” when “changed
circumstances . . . materially affect the applicant’s eligibility for asylum.” Id. at § 1158(a)(2)(D).
“Changed circumstances” are defined by regulations as “refer[ring] to circumstances materially
affecting the applicant’s eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i). Some circumstances
that affect an applicant’s eligibility for asylum include changes in country conditions in the
applicant’s country of nationality, id. at § 1208.4(a)(4)(i)(A), or “[c]hanges in the applicant’s
circumstances that materially affect the applicant’s eligibility for asylum, including changes in
applicable U.S. law and activities the applicant becomes involved in outside the country of
feared persecution that place the applicant at risk,” id. at § 1208.4(a)(4)(i)(B). Therefore, while

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changed circumstances can excuse a late-filed application, Manassian must demonstrate that the
change in her circumstances was one that materially affected her eligibility for asylum. See 8
U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)(i).
If Manassian were eligible for asylum based on the threats made by her husband’s
nephew, this eligibility arose in January 2006 when her ex-husband committed suicide and his
family began making threats against her. Thus, the rejection of the I-130 petition did not
constitute a changed circumstance within the meaning of the regulation. She could have and
should have applied for asylum within a reasonable period of time after her ex-husband’s suicide
and the beginning of the threats by his family members. See 8 C.F.R. § 1208.4(a)(4)(ii). We
find no error in the IJ’s and BIA’s determinations that Manassian’s application for asylum was
untimely.
IV. CONCLUSION
For the foregoing reasons, we DENY Manassian’s petition for review.

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