Tatevik Hayrapetyan v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TATEVIK HAYRAPETYAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 09-73933
Agency No. A096-494-304
MEMORANDUM*
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.
FILED
JAN 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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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