Guzman v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARACELI GUZMAN, No. 07-73933
Petitioner, Agency No. A074-385-546
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued November 4, 2010
Submitted November 30, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and KENNELLY,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Araceli Guzman, a native and citizen of Mexico, petitions for review of an
order reinstating her January 10, 1996 order of exclusion and deportation. We
deny the petition.
I
Guzman’s application to adjust her status was not denied on the basis of the
ten-year bar in INA § 212(a)(9)(C), but because of her January 10, 1996 removal
and bar from entering the United States “for a period of one year.” The one-year
bar was in effect at the time of her removal. 8 U.S.C. § 1182(a)(6)(A) (1994).
Reinstatement of removal was ordered pursuant to INA § 241(a)(5), which applies
retroactively. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 (2006). Thus,
neither the denial of Guzman’s application nor the reinstatement of the prior order
had an impermissible retroactive effect. Guzman does not challenge any of the
factual predicates for reinstatement. See Padilla v. Ashcroft, 334 F.3d 921, 925
(9th Cir. 2003).
II
Guzman did not seek discretionary waiver until after her removal order was
reinstated. This meant that she was ineligible for “any relief,” including
adjustment of status. 8 U.S.C. § 1231(a)(5); cf. Duran-Gonzales v. DHS, 508 F.3d
1227, 1236 (9th Cir. 2007). Any error in the 2009 denials of her waiver
applications is harmless. See Padilla, 334 F.3d at 924–25.
III
Guzman had no right to counsel in the reinstatement proceeding because it
was not before an immigration judge. Morales-Izquierdo v. Gonzales, 486 F.3d
484, 497 (9th Cir. 2007) (en banc). Thus, she cannot claim her attorney was
ineffective during the proceeding. Nor can she claim that counsel was ineffective
in failing to file an I-212 waiver application. See Balam-Chuc v. Mukasey, 547
F.3d 1044, 1050–51 (9th Cir. 2008). DHS wasn’t obliged to allow her to file for
cancellation of removal, as she never sought that relief. See Fernandez-Vargas,
548 U.S. at 42 n.9. Guzman is not similarly situated to the alien in In re Cisneros-
Gonzales, 23 I. & N. Dec. 668, 668-69 (BIA 2004), who had applied for
cancellation of removal prior to his removal proceeding. Her remaining due
process arguments lack merit.
PETITION DENIED.