                              NOT FOR PUBLICATION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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