                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                           MAR 06 2014

                                                                         MOLLY C. DWYER, CLERK
 ANH PHUONG TRAN,                                                          U.S. COURT OF APPEALS

                                                   No. 11-70036
           Petitioner,
                                                   BIA No. A070 178 158
 v.

 ERIC H. HOLDER, JR., ATTORNEY                     MEMORANDUM*1
 GENERAL,

           Respondent.


                            Petition to Review a Decision of
                           the Board of Immigration Appeals

                         Argued and submitted January 7, 2014
                                 Pasadena, California

Before:       REINHARDT and CLIFTON, Circuit Judges, and DORSEY, District
              Judge.**2

      Anh Phuong Tran, a Vietnamese/Canadian immigrant, petitions for review

of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal


      *
         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.
      **
        The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
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from an order of removal entered by an immigration judge based upon a finding

that Tran’s 2009 criminal conviction for racketeering conspiracy in violation of 18

U.S.C. § 1962(d) qualified her as an alien with an aggravated-felony conviction

under 8 U.S.C. § 1101(a)(43)(M), (J), (U). Tran contends that the BIA deprived

her of due process by not staying her removal proceedings to permit her to attempt

to withdraw her guilty plea in the U.S. District Court, which she claims she entered

without knowledge of its consequences on her immigration status, rendering it

defective under Padilla v. Kentucky, 559 U.S. 356 (2010). The government

disputes this Court’s jurisdiction to hear this appeal due to Tran’s waiver of

appellate rights before the immigration judge and failure to contest the knowing

and intelligent nature of that waiver during her BIA appeal. Even if we resolved

these jurisdictional questions in Tran’s favor, Tran cannot prevail because Padilla

does not allow this collateral attack on Tran’s criminal conviction. Accordingly,

we deny the petition for review.

      In Padilla, the Supreme Court held that a criminal defendant has a Sixth

Amendment right to be informed of the immigration consequences of a guilty plea.

559 U.S. at 374. Three years later, in Chaidez v. United States, 133 S. Ct. 1103,

1107–13 (2013), the Supreme Court limited Padilla’s application by recognizing

that its rule is a new one that does not apply retroactively to criminal convictions


                                          2
pre-dating Padilla. Because Tran signed her plea in April 2008, and criminal

judgment was entered against her in November 2009—over four months before

Padilla was decided—Tran’s defense attorney had no obligation to inform her of

the potential immigration consequences of her plea agreement. Chaidez, 133 S. Ct.

at 1113. Thus, Tran’s proposed collateral attack on her criminal plea is foreclosed

by Chaidez.

      Tran concedes that 8 U.S.C. § 1227(a)(2)(A)(iii) required the immigration

judge to order removal of any alien found to have committed an aggravated felony

based on a criminal guilty plea. Tran’s racketeering conspiracy conviction was a

qualifying aggravated felony. 8 U.S.C. § 1101(a)(43)(M), (J), (U). Because Tran

cannot collaterally attack her guilty plea and conviction in light of Chaidez, she

cannot demonstrate that she suffered prejudice sufficient to establish a cognizable

due process violation. Reyes-Melendez v. I.N.S., 342 F.3d 1001, 1006 (9th Cir.

2003) (to show prejudice, petitioner must show that “the outcome of the

proceeding may have been affected by the alleged violation.”).

PETITION DENIED.




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