                                                                          FILED
                              NOT FOR PUBLICATION                          DEC 27 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                     U .S. C O U R T O F AP PE ALS




                              FOR THE NINTH CIRCUIT



GIANG LAM TRAN,                                   No. 09-70956

               Petitioner,                        Agency No. A042-525-676

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.

       Giang Lam Tran, a native and citizen of Vietnam, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based

on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252.

We review for abuse of discretion the BIA’s denial of a motion to reopen, and


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo questions of law and claims of due process violations in removal

proceedings, including claims of ineffective assistance of counsel. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review

and remand.

      The BIA erred in concluding that Tran could not demonstrate ineffective

assistance of counsel because he was statutorily ineligible for a waiver of

inadmissability under section 212(h), 8 U.S.C. § 1182(h), due to his 1997

convictions for violating Cal. Penal Code § 207(a) and § 245(a)(1). Neither of

Tran’s convictions is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)

because the term of imprisonment for each was less than a year. See Alberto-

Gonzalez v. INS, 215 F.3d 906, 909 (9th Cir. 2000) (term of imprisonment refers to

the actual sentence imposed by the judge).

      Moreover, in assessing whether Tran had shown he was prejudiced by his

former counsel’s assistance, the BIA applied the standard set forth in Matter of

Compean, 24 I. & N. Dec. 710 (A.G. 2009), a decision which was later vacated,

see Matter of Compean, 25 I. & N. Dec. 1, 3 (A.G. 2009), as opposed to the

standard set forth in Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir. 2003).

While the government acknowledges the vacatur of Compean, it argues that Tran

failed to demonstrate prejudice under either standard. However, “this court cannot


                                          2                                   09-70956
affirm the BIA on a ground upon which it did not rely.” Navas v. INS, 217 F.3d

646, 658 n.16 (9th Cir. 2000).

      We therefore remand to the BIA to apply the correct legal standard in the

first instance. See INS v. Ventura, 537 U.S. 12 (2002) (per curiam). On remand,

both parties may present additional evidence regarding any of the predicate

eligibility requirements.

      PETITION FOR REVIEW GRANTED; REMANDED.




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