Giang Tran v. Eric Holder, Jr. ( 2010 )

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NOT FOR PUBLICATION DEC 27 2010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
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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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