Anh Tran v. Eric Holder, Jr. , 560 F. App'x 688 ( 2014 )

NOT FOR PUBLICATION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
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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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