Krikor Atamian v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JUN 24 2010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
KRIKOR ATAMIAN, No. 08-75032
Petitioner, Agency No. A078-440-480
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2010 **
Pasadena, California
Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN, District Judge.***
Krikor Atamian, a native of Lebanon and citizen of Canada, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
reopen removal proceedings on the basis of ineffective assistance of counsel. We
have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
We review the denial of a motion to reopen for an abuse of discretion.
Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). “Aliens who seek to
remand or reopen proceedings to pursue relief bear a heavy burden of proving that,
if proceedings were reopened, the new evidence would likely change the result of
the case.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008)
(internal quotation marks omitted).
The BIA did not abuse its discretion in denying Atamian’s motion to reopen
because he would be ineligible for relief if proceedings were reopened. Atamian
did not leave the United States within the 120-day voluntary departure period
granted by the Immigration Judge. This makes him ineligible for discretionary
relief from removal for a period of ten years. 8 U.S.C. § 1229c(d)(1).
Atamian seeks an exception to section 1229c(d)(1) because counsel
erroneously advised him to remain in the United States and file an appeal, despite
Atamian’s having previously waived appeal in exchange for an extended voluntary
departure period. Section 1229c(d)(1), however, does not permit exceptions for
ineffective assistance of counsel. Granados-Oseguera v. Mukasey, 546 F.3d 1011,
1016 (9th Cir. 2008) (per curiam); see also Matter of Zmijewska, 24 I. & N. Dec.
2
87, 92 (BIA 2007) (“Congress has not given the Board or the courts authority to
recognize equitable exceptions . . . beyond those specifically provided in the
voluntary departure provisions.”). Atamian argues that counsel’s erroneous advice
renders his failure to depart involuntary under the BIA’s decision in Matter of
Zmijewska. But unlike the petitioner in Zmijewska, Atamian was aware of the
voluntary departure period, the consequences for failing to depart, and the fact that
he had waived his right to appeal.1 See 24 I. & N. Dec. at 94–95. The conduct of
Atamian’s counsel, if he acted as alleged, does not excuse Atamian from having
“voluntarily fail[ed]” to leave the United States within the voluntary departure
period. 8 U.S.C. § 1229c(d)(1).
PETITION DENIED.
1
Atamian has not alleged that he was physically unable to leave the United
States within the voluntary departure period.
3