
    UNITED STATES of America, Plaintiff-Appellee, v. Estaban CASTANEDA-MAGANA, aka Francisco Cervantes, aka Esteban M. Castaneda, Defendant-Appellant.
    No. 01-50102. D.C. No. CR 00-00720-CRM.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 6, 2001.
    Decided Jan. 22, 2002.
    
      Before PREGERSON, TASHIMA, and BERZON, Circuit Judges.
   MEMORANDUM

Estaban Castaneda-Magana appeals the district court’s denial of his motion to dismiss his 8 U.S.C. § 1326 indictment. Castaneda-Magana claims that his due process rights were violated by the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) because they did not allow him to apply for discretionary § 212(c) relief from deportation. The IJ and BIA held that Castaneda-Magana was ineligible to apply for such relief due to the passage of the Anti-Terrorism and Effective Death Penalty Act. CastanedaMagana’s subsequent deportation served as an underlying element for his § 1326 conviction. Castaneda-Magana also claims that his attorney provided ineffective assistance of counsel when his attorney informed Castaneda-Magana that there was no chance that the BIA’s decision would be overturned by an appeal to the federal courts.

With regard to the due process claims concerning the IJ and the BIA, Castaneda-Magana needed to show that he was prejudiced by their decisions which found him ineligible to apply for discretionary § 212(c) relief. United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996). For Castaneda-Magana to demonstrate prejudice, he needed to demonstrate that there were plausible grounds for granting him discretionary § 212(c) relief. Id. Because Castaneda-Magana did not demonstrate such plausible grounds, he was not prejudiced by the decisions of the IJ and the BIA. Therefore, we affirm the district court’s denial of his due pro-cess claims based on the decisions of the IJ and the BIA.

We also affirm the district court as to its denial of Castaneda-Magana’s ineffective assistance of counsel claim. Although it turned out that counsel’s advice was erroneous in light of the Supreme Court’s subsequent decision in INS v. St. Cyr., 533 U.S. 289, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001), in the circumstances of this case, we cannot equate advice that turned out to be erroneous with ineffective assistance of counsel.

For the foregoing reasons, the district court’s decision denying Castaneda-Magana’s motion to dismiss his § 1326 indictment is AFFIRMED. 
      
      . 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 9th Cir. R. 36-3.
     