NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALEKSANDR FEDOSEEV, No. 12-70278
Petitioner, Agency No. A099-043-107
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2016
Pasadena, California
Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.
Aleksandr Fedoseev petitions for review of the Board of Immigration
Appeals’ order denying his motion to reopen his application for asylum,
withholding of removal, and relief under the Convention Against Torture.
Fedoseev argues that he received ineffective assistance of counsel when, acting on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
his counsel’s advice, he decided to withdraw his asylum application and accept
voluntary departure. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny
the petition.
Ineffective assistance of counsel in removal proceedings may justify
reopening those proceedings. See Jie Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th
Cir. 2004). Ineffective assistance may also be a basis for equitable tolling of the
filing deadline for a motion to reopen. Singh v. Holder, 658 F.3d 879, 884 (9th
Cir. 2011). To establish the requisite ineffectiveness, a petitioner must show that
his counsel’s performance was so deficient that it resulted “in a denial of due
process under the Fifth Amendment” because it rendered the proceeding in
question “so fundamentally unfair that the [petitioner] [was] prevented from
reasonably presenting [his] case.” Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.
2003).
Here, Fedoseev told his counsel that his pending asylum application was
false, and he gave counsel no reason to believe that he had an alternative, valid
ground for asylum. In that light, counsel reasonably advised her client to withdraw
the asylum application and accept voluntary departure. Fedoseev was fully
apprised of the consequences of accepting voluntary departure before the IJ entered
the appropriate order. Given those facts, counsel did not render ineffective
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assistance, and the IJ and the BIA did not abuse their discretion in denying the
motion to reopen. See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th
Cir. 2015) (per curiam) (reviewing the denial of a motion to reopen for abuse of
discretion).
DENIED
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