Adrian Herrera-Corral v. Eric H. Holder Jr. , 472 F. App'x 435 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN HERRERA-CORRAL, No. 08-71883
Petitioner, Agency No. A034-145-416
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2012**
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN, Senior
District Judge.***
*
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).
***
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
Herrera petitions for review of the denial of INA § 212(c) relief by the
Board of Immigration Appeals. He argues that the immigration judge in Herrera’s
1983 deportation proceedings lacked jurisdiction to order him deported, that he is
entitled to § 212(c) relief because he is still a lawful permanent resident and that
his due process rights were violated when the immigration judge in the current
proceedings held that he was not entitled to § 212(c) relief. We deny the petition
for relief.
An alien can collaterally attack an earlier deportation at a subsequent
deportation hearing only for gross miscarriage of justice. Ramirez-Juarez v. INS,
633 F.2d 174, 175 -76 (9th Cir. 1980). This court reviews questions of law de
novo. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000).
Herrera argues that his earlier deportation was a gross miscarriage of justice
because the order to show cause was not properly filed and the immigration judge
thus lacked jurisdiction to order him deported. The immigration judge had
jurisdiction, however, as the order to show cause was filed before the court entered
the deportation order. Herrera does not dispute that he was properly served and he
was able to present witnesses at his 1983 deportation hearing. There was no gross
miscarriage of justice.
2
Herrera lost permanent resident status when the immigration judge entered
the final administrative order of deportation in his prior proceeding and when he
was deported. United States v. Reyna-Tapia, 328 F.3d 1114, 1117 (9th Cir. 2003).
He does not meet the requirement for a discretionary waiver from deportation that
he have a lawful unrelinquished domicile of seven consecutive years. Pascua v.
Holder, 641 F.3d 316, 318 (9th Cir. 2011). There was no error in denying
Herrera’s application for relief.
This court reviews de novo claims of due process violations in removal
proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). As Herrera was
statutorily ineligible for § 212(c) relief, the immigration judge could not grant him
relief. The immigration judge did not err in denying his application without a full
hearing. Herrera has not shown error and substantial prejudice. Larita-Martinez v.
INS, 220 F.3d 1092, 1095 (9th Cir. 2000).
PETITION DENIED.
3