NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THANH NGUYEN, No. 16-73996 Petitioner, Agency No. A205-648-646 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 4, 2019** Seattle, Washington Before: GOULD and PAEZ, Circuit Judges, and BASHANT,*** District Judge. Thanh Nguyen petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal. The BIA affirmed the immigration judge (“IJ”)’s ruling denying Nguyen’s motion to amend his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Cynthia A. Bashant, United States District Judge for the Southern District of California, sitting by designation. pleadings,1 finding him ineligible for adjustment of status, and ordering his removal. We have jurisdiction under 8 U.S.C. § 1252, and we review the BIA’s and the IJ’s decisions, to the extent the BIA incorporated parts of the IJ’s decision as its own. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011). We grant in part and deny in part the petition, and remand. 1. We first reject Nguyen’s contention that the IJ erred by considering and relying on the Department of Homeland Security (“DHS”)’s opposition to his motion. DHS timely filed its opposition, and served it on counsel by email. Nguyen does not contend that he never actually received DHS’s opposition; rather, he objects to the manner of service. While the relevant regulations do not provide for electronic service of filings, see 8 C.F.R. § 1003.32(a), Nguyen has not shown that DHS’s actions prejudiced him. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). DHS submitted no evidence with its opposition and the IJ provided his own reasons for denying Nguyen’s motion. See 8 C.F.R. § 1003.10(b). Moreover, Nguyen does not identify what he or his counsel would have done if DHS had served its opposition in compliance with § 1003.32(a). 1 We use “pleadings” to refer to an individual’s response to DHS’s allegations in the notice to appear, i.e. DHS’s charging document. See Santiago-Rodriguez, 657 F.3d at 829 (describing how the IJ must require the individual “to plead to the notice to appear by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein.” (internal quotation marks omitted)). Pleadings are usually made on the record when the individual first appears for his or her removal proceedings. 2 Because Nguyen has not shown how email service impacted his proceedings, he has failed to establish either a due process violation or an abuse of discretion. Cf. Kohli v. Gonzales, 473 F.3d 1061, 1068–70 (9th Cir. 2007). 2. We do, however, agree that the agency abused ...
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