                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JAN 14 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




TATEVIK HAYRAPETYAN,                             No. 09-73933

              Petitioner,                        Agency No. A096-494-304

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted February 5, 2013**
                               Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

      Petitioner Tatevik Hayrapetyan appeals from the Board of Immigration

Appeals’ (BIA’s) denial of her motion to reopen her case based on ineffective

assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252, and we affirm.



        *
             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).
      We review the BIA’s denial of a motion to reopen for abuse of discretion,

Cano-Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002); its determination of

questions of law, including claims of ineffective assistance of counsel, de novo,

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005); and its factual

findings for substantial evidence, id.

      While there is no Sixth Amendment right to counsel in deportation

proceedings, the Fifth Amendment’s due process clause ensures that no petitioner’s

proceeding is “so fundamentally unfair that [she is] prevented from reasonably

presenting [her] case.” Gonzales, 400 F. 3d at 793. To prevail on a claim of

ineffective assistance of counsel, the petitioner must show (1) that her counsel

performed deficiently, and (2) that she was prejudiced by that deficient

performance. Id. Hayrapetyan cannot make either showing. Hayrapetyan argues

that her attorney performed deficiently by withdrawing her application for

adjustment of status and requesting voluntary departure as an alternative form of

relief. Under Ninth Circuit case law, however, counsel’s tactical decision, even if

“unwise” in retrospect, does not amount to deficient performance unless petitioner

can show that the decision fell below the level of professional competence. See

Magallanes-Damian v. I.N.S., 783 F.2d 931, 934 (9th Cir. 1986). Given

Hayrapetyan’s inconsistent testimony regarding whether she entered the United


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States without inspection, and the absence of any evidence corroborating her later

claim that she entered with inspection, we cannot construe her counsel’s

recommended course as anything other than a defensible tactical decision.

      Even if we were to bypass this first step, Hayrapetyan cannot satisfy the

second. Her representation that she entered the United States without inspection,

made through two different attorneys at two different hearings, forecloses any

claim that she was prejudiced, as her uninspected entry into the United States made

her ineligible for adjustment of status under § 245(i) of the Immigration and

Nationality Act.

      AFFIRMED.




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