315 F. App'x 24

Nadezda NADTOCHAEV; Alesya Nadtochaev; Oleg Nadtochaev; Susanna Nadtochaev; Victoria Nadtochaev, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent. Nadezda Nadtochaev; Alesya Nadtochaev; Oleg Nadtochaev; Susanna Nadtochaev; Victoria Nadtochaev, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.

Nos. 05-77168, 06-73432.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 21, 2008.

Filed Nov. 21, 2008.

Phillip Hornik, Esquire, Portland, OR, for Petitioners.

Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, Oil, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., ORP-District Director, Office of the District Director Department of Homeland Security, Portland, OR, Thomas Fatouros, Esquire, Trial, U.S. Department of Justice, *25Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: THOMPSON, TASHIMA and M. SMITH, Circuit Judges.

MEMORANDUM *

Nadezda Nadtochaev and her children (together “Nadtochaev”)1 , natives of Uzbekistan and citizens of Israel, petition for review of two orders of the Board of Immigration Appeals (“BIA”). In No. 05-77168, she seeks review of an order of removal issued by an Immigration Judge (“IJ”) and affirmed by the BIA after the IJ denied Nadtochaev’s applications for asylum, withholding of removal, and relief under the Convention Against Torture. In No. 06-73482, Nadtochaev petitions for review of the BIA’s denial of a motion to reopen based on ineffective assistance of counsel.2 We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny both petitions.

The evidence presented by Nadtochaev fails to establish that she has a well-founded fear of future persecution.3 See Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007) (stating that a well-founded fear must be subjectively genuine and objectively reasonable). We therefore uphold the BIA’s decision that Nadtochaev failed to establish eligibility for asylum. See Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.2005) (stating that a denial of asylum is reviewed for substantial evidence and the petition may only be granted if the record compels a different result). Nadto-chaev’s failure to establish a well-founded fear of future persecution means that she also failed to establish eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (finding that a petitioner’s failure to satisfy her burden for asylum also fails to satisfy her burden for withholding of removal).

We also reject Nadtochaev’s contention that her claim was prejudiced by prior counsel’s ineffective assistance. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (stating that a claim for ineffective assistance of counsel requires the petitioner to demonstrate that prior counsel failed to perform with sufficient competence, and that petitioner was prejudiced by her prior counsel’s performance). The evidence that Nadtochaev presented to the BIA in her motion to reopen fails to demonstrate that her claim of a well-founded fear was prejudiced.4 See Jie Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (noting that to show prejudice, a petitioner needs to demonstrate that he has plausible grounds for relief). Consequently, her claim for withholding of removal also was not prejudiced. See Farah, 348 F.3d at 1156.

*26Finally, the IJ granted Nadtochaev’s petition for voluntary departure; thus, we disagree with her assertion that the petition for voluntary departure was prejudiced. See Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.2008) (stating that “ ‘ineffective assistance of counsel amounts to a violation of due process if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case’ ”) (quoting Mohammed, 400 F.3d at 793).

Both petitions for review are denied.

PETITIONS DENIED.

Nadtochaev v. Mukasey
315 F. App'x 24

Case Details

Name
Nadtochaev v. Mukasey
Decision Date
Nov 21, 2008
Citations

315 F. App'x 24

Jurisdiction
United States

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