Artur Gevorgian v. ERIC H. HOLDER Jr., Attorney General

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
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTUR GEVORGIAN,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71974
Agency No. A075-635-139
MEMORANDUM *
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
FILED
MAR 24 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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).

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Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.

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