FILED
NOT FOR PUBLICATION AUG 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINH TAN NGUYEN, AKA Armando No. 10-71050
Gile Luat, AKA Van Duc Vo,
Agency No. A027-359-701
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VINH TAN NGUYEN, No. 10-72974
Petitioner, Agency No. A027-359-701
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VINH TAN NGUYEN, AKA Van Duc No. 10-73904
Bo, AKA Armando Gile Luat,
Agency No. A027-359-701
Petitioner,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 8, 2013
Pasadena, California
Before: PREGERSON, WARDLAW, and TALLMAN, Circuit Judges.
Vinh Tan Nguyen (“Nguyen”) petitions for review of a Board of
Immigration Appeals (“BIA”) decision dismissing his appeal from an Immigration
Judge’s (“IJ”) order of removal. Nguyen also petitions for review of a BIA
decision denying his motion to reopen, as well as a subsequent BIA decision
denying Nguyen’s motion for reconsideration of that denial.
In this Memorandum disposition, we address Nguyen’s claims that:
1. He was denied due process when the Notice to Appear failed to allege
that he was a lawful permanent resident;
2. The IJ failed to inform him of various forms of immigration relief
for which he was apparently eligible; and,
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3. The BIA abused its discretion in denying Nguyen’s motions to reopen
and reconsider, which were based on an ineffective assistance of
counsel claim.
We deny the petitions with respect to these claims. We address Nguyen’s
other claims in a published Opinion filed concurrently with this Memorandum
disposition.
1. Nguyen was not denied due process when the Notice to Appear treated
him as an alien seeking admission to the United States, rather than a returning
lawful permanent resident. An alien who has been previously granted lawful
permanent resident status is properly regarded as an alien seeking admission if he
“has engaged in illegal activity after having departed the United States.” 8 U.S.C.
§ 1101(a)(13)(C)(iii). The government had ample evidence that Nguyen engaged
in illegal activity after departing the United States — indeed, Nguyen’s own guilty
plea confirmed as much. In light of this evidence, Nguyen was properly treated as
an alien seeking admission to the United States; the government was under no
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obligation to treat Nguyen as a returning lawful permanent resident. See Gonzaga-
Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013).1
2. The IJ did not fail to inform Nguyen of any relief for which Nguyen was
apparently eligible. See 8 C.F.R. § 1240.11(a)(2). Even if the IJ had failed to
inform Nguyen of any relief for which Nguyen was apparently eligible, Nguyen
would still be required to show that he was prejudiced by this failure. See United
States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013). Nguyen has made
no such showing. On the contrary, the record shows that Nguyen was aware of all
relevant forms of immigration relief, and that he deliberately chose not to pursue
forms of relief that he could not reasonably hope to obtain.
3. The BIA did not abuse its discretion in denying Nguyen’s motions to
reopen and reconsider, which were based on an ineffective assistance of counsel
claim. Nguyen’s ineffective assistance of counsel claim was procedurally barred.
See Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004); Matter of Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988). Even if it were not procedurally barred, that
1
Nguyen physically entered the United States pursuant to a grant of parole
on December 14, 2006. When his parole expired on June 13, 2007, Nguyen was
restored by operation of law to the status he held at the time he was granted parole
— i.e., status as an alien seeking admission. See 8 U.S.C. § 1182(d)(5)(A); 8
C.F.R. § 212.5(e)(2)(i). Thus, Nguyen was properly regarded as an alien seeking
admission when he was served with the Notice to Appear on December 21, 2007.
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claim would fail on the merits. Nguyen has not shown that his former attorney’s
conduct fell “outside the wide range of reasonable representation.” Torres-Chavez
v. Holder, 567 F.3d 1096, 1101 (9th Cir. 2009). On the contrary, Nguyen’s former
attorney diligently pursued the only claim that offered Nguyen any hope of
relief — Nguyen’s application for deferral of removal under the Convention
Against Torture.
We DENY IN PART the petition for review of the BIA’s decision on the
merits of Nguyen’s removal order, No. 10-71050. We address the remainder of
that petition in a published Opinion filed concurrently with this Memorandum
disposition. We DENY the petitions for review of the BIA’s denials of Nguyen’s
motions to reopen and reconsider, Nos. 10-72974 and 10-73904.
Petition No. 10-71050 DENIED IN PART. Petition No. 10-72974
DENIED. Petition No. 10-73904 DENIED.
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