                                                                           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                            NOT FOR PUBLICATION                            AUG 14 2014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.

                                         -4-
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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