Aleksandr Fedoseev v. Loretta E. Lynch

MEMORANDUM

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 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.…