                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 24 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KRIKOR ATAMIAN,                                  No. 08-75032

              Petitioner,                        Agency No. A078-440-480

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                             Submitted June 9, 2010 **
                               Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN, District Judge.***

       Krikor Atamian, a native of Lebanon and citizen of Canada, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
reopen removal proceedings on the basis of ineffective assistance of counsel. We

have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

      We review the denial of a motion to reopen for an abuse of discretion.

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). “Aliens who seek to

remand or reopen proceedings to pursue relief bear a heavy burden of proving that,

if proceedings were reopened, the new evidence would likely change the result of

the case.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008)

(internal quotation marks omitted).

      The BIA did not abuse its discretion in denying Atamian’s motion to reopen

because he would be ineligible for relief if proceedings were reopened. Atamian

did not leave the United States within the 120-day voluntary departure period

granted by the Immigration Judge. This makes him ineligible for discretionary

relief from removal for a period of ten years. 8 U.S.C. § 1229c(d)(1).

      Atamian seeks an exception to section 1229c(d)(1) because counsel

erroneously advised him to remain in the United States and file an appeal, despite

Atamian’s having previously waived appeal in exchange for an extended voluntary

departure period. Section 1229c(d)(1), however, does not permit exceptions for

ineffective assistance of counsel. Granados-Oseguera v. Mukasey, 546 F.3d 1011,

1016 (9th Cir. 2008) (per curiam); see also Matter of Zmijewska, 24 I. & N. Dec.


                                         2
87, 92 (BIA 2007) (“Congress has not given the Board or the courts authority to

recognize equitable exceptions . . . beyond those specifically provided in the

voluntary departure provisions.”). Atamian argues that counsel’s erroneous advice

renders his failure to depart involuntary under the BIA’s decision in Matter of

Zmijewska. But unlike the petitioner in Zmijewska, Atamian was aware of the

voluntary departure period, the consequences for failing to depart, and the fact that

he had waived his right to appeal.1 See 24 I. & N. Dec. at 94–95. The conduct of

Atamian’s counsel, if he acted as alleged, does not excuse Atamian from having

“voluntarily fail[ed]” to leave the United States within the voluntary departure

period. 8 U.S.C. § 1229c(d)(1).

      PETITION DENIED.




      1
        Atamian has not alleged that he was physically unable to leave the United
States within the voluntary departure period.

                                          3
