                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 24 2010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



 ARTUR GEVORGIAN,                                No. 07-71974

               Petitioner,                       Agency No. A075-635-139

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

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Artur Gevorgian petitions for review of the Board of Immigration Appeals’

(“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision

denying his motion to reopen based on ineffective assistance of counsel. We have



          *
             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).

JTK/Research
jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the

denial of a motion to reopen, review findings of fact regarding counsel’s

performance for substantial evidence, and review de novo claims of due process

violations. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). We deny in part

and grant in part the petition for review and remand for further proceedings.

       The agency properly concluded that Gevorgian’s former counsel’s advice to

Gevorgian to withdraw his application for asylum and to accept voluntary

departure constituted a tactical decision. See Magallanes-Damian v. INS, 783 F.2d

931, 934 (9th Cir. 1986).

       However, the agency abused its discretion in denying Gevorgian’s motion to

reopen. Former counsel’s failure to file Gevorgian’s first motion to reopen with

the IJ before Gevorgian’s voluntary departure period expired rendered the

proceedings “so fundamentally unfair that [Gevorgian] was prevented from

reasonably presenting his case.” Lin, 377 F.3d at 1026-27 (citation omitted). We

remand for the BIA to determine in the first instance whether counsel’s actions

prejudiced Gevorgian’s case. See Mohammed v. Gonzales, 400 F.3d 785, 793-94

(9th Cir. 2005) (to prevail on an ineffective assistance of counsel claim a petitioner

must demonstrate prejudice); see generally INS v. Ventura, 537 U.S. 12, 16 (2002)

(per curiam).


JTK/Research                               2                                    07-71974
       Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.




JTK/Research                               3                               07-71974
