                                                                              FILED
                              NOT FOR PUBLICATION                             DEC 15 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


IRINA VALERYEVNA MELNIKOVA                       No. 11-71975
and VYACHESLAV VISSARIONOVICH
TIGAY,                                           Agency Nos.        A096-356-452
                                                                    A096-356-453
              Petitioners,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted December 11, 2014**
                                 Pasadena, California

Before: GILMAN,*** GRABER, and CALLAHAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      Irina Melnikova and Vyacheslav Tigay petition for review of the Board of

Immigration Appeals’ (“BIA”) denial of their motion to reopen based on the

alleged ineffective assistance of counsel (“IAC”) of two of their prior attorneys.

The BIA held that (1) most instances of IAC alleged by Petitioners are unsupported

by the record; (2) their first counsel’s failure to submit an original letter in Russian

did not prejudice Petitioners; (3) because the first attorney was not ineffective, the

second attorney could not have been ineffective for failing to argue that the first

attorney was ineffective; and (4) Petitioners did not show the “exceptional

circumstances” necessary to warrant the reopening of their case. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.1

      1.     Under the substantial evidence standard of review, “administrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zarate

v. Holder, 671 F.3d 1132, 1134 (9th Cir. 2012). Petitioners claim that they were

prejudiced by their first attorney’s failure to introduce the testimony of Tigay and

of Melnikova’s psychologist, but both of them testified. Petitioners also claim that

their first attorney did not develop Melnikova’s racial and ethnic persecution



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                           2
claims, but these claims were discussed extensively during Melnikova’s testimony

and in the immigration judge’s (“IJ”) opinion.

      2.      “Questions of law, including claims of due process violations due to

ineffective assistance, [are] review[ed] de novo.” Mohammed v. Gonzales, 400

F.3d 785, 791–92 (9th Cir. 2005). To establish IAC, a petitioner must prove (1)

that the attorney acted incompetently, and (2) that the error was prejudicial to the

petitioner’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also

Mohammed, 400 F.3d at 793 (applying the Strickland test for IAC in an

immigration proceeding). “[P]rejudice results when the performance of counsel

was so inadequate that it may have affected the outcome of the proceedings.”

Mohammed, 400 F.3d at 793–94 (internal quotation marks omitted).

      Most of the grounds on which Petitioners argue that their first attorney acted

ineffectively are not relevant to the IJ’s adverse credibility determination. The IJ

relied on only one of these instances in reaching her decision—that Melnikova

failed to produce the untranslated letter verifying her membership in the Grace

Church in Uzbekistan. However, the IJ’s finding that Melnikova was not credible

rested on a number of other articulated and substantiated grounds, and thus this

single error (if it was error) did not amount to prejudice.




                                           3
      3.     Petitioners argue that their second attorney was ineffective for failing

to argue that their first attorney was ineffective. However, Petitioners were not

prejudiced by any alleged ineffectiveness of their first attorney, and thus could not

show that their second attorney acted ineffectively for failing to make that

argument. Moreover, Melnikova admits that she discussed this argument with her

second attorney and that he explained to her that the best strategy on appeal was to

focus on the judge’s decision and not on her prior attorney’s actions. Attorneys do

not act ineffectively when they make tactical decisions about how best to argue a

client’s case. See Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986)

(holding that an attorney’s decision not to contest deportability was an appropriate

tactical decision).

      4.     Petitioners also asked the BIA to equitably toll the deadline for filing

their motion to reopen. Equitable tolling is appropriate when a petitioner fails to

timely file a motion to reopen due to another person’s “deception, fraud, or error,

as long as the petitioner act[ed] with due diligence.” Iturribarria v. INS, 321 F.3d

889, 897 (9th Cir. 2003). Without showing any IAC on the part of either of their

attorneys, Petitioners have not shown that they suffered any deception, fraud, or




                                          4
error. Accordingly, the BIA did not abuse its discretion by refusing to equitably

toll the deadline for Petitioners’ motion to reopen.2 See id. at 897–98.

      All of Petitioners’ claims for IAC are unsupported by the record, were not

relied on by the IJ in reaching her decision, or did not prejudice them. In the

absence of any IAC, the BIA did not abuse its discretion in declining to equitably

toll the deadline to file the motion to reopen.

      PETITION DENIED.




      2
         The BIA also declined to reopen Melnikova’s case sua sponte, a decision
that is not reviewable by this court. See Sharma v. Holder, 633 F.3d 865, 874 (9th
Cir. 2011).

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