Opinion
Argued and Submitted February 7, 2002.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
On Petition for Review of an Order of the Board of Immigration Appeals.
Before TROTT, THOMAS and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Petitioner Wei Chang, a native and citizen of the People's Republic of China, seeks review of the Board of Immigration Appeals' ("BIA") decision dismissing his ineffective assistance of counsel appeal. We deny the petition for review. Because the parties are familiar with the factual and procedural history of this claim, we will not recount it here.
Chang must show that he received ineffective assistance, that the assistance resulted in prejudice to his case, and that as a result his deportation proceedings were fundamentally unfair in violation of the Due Process Clause of the Fifth Amendment. See Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.1986). At his
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exclusion hearing, Chang requested an opportunity to file for asylum and withholding of deportation in lieu of exclusion and deportation. The immigration judge established a deadline for filing an asylum application and ordered Chang released on his own recognizance. No application was filed. However, Chang does not claim that an attorney agreed to handle his political asylum application, nor does he allege that there was any agreement to that effect. An attorney does not commit ineffective assistance of counsel by failing to perform unrequested services. The BIA did not abuse its discretion in concluding as much.
PETITION DENIED.