Vicente Garduno v. Eric Holder, Jr. , 584 F. App'x 828 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VICENTE GARDUNO, No. 12-70142
Petitioner, Agency No. A075-106-359
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2014
Seattle, Washington
Before: HAWKINS, GRABER, and GOULD, Circuit Judges.
Petitioner Vicente Garduno (“Garduno”) petitions for review of a 2011
Board of Immigration Appeals (“BIA”) order which dismissed his collateral attack
on a 2004 BIA removal order. He raises two contentions in his petition for review:
1) that the BIA erred in dismissing his collateral attack on the 2004 order; and 2)
that subsequent reliance by the immigration judge (“IJ”) and the BIA on the 2004
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
removal order to deny him adjustment of status relief denied him due process of
law. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
Absent a “gross miscarriage of justice,” an alien may not collaterally attack
an earlier removal order. See Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th
Cir. 1980) (per curiam). Garduno contends that the BIA committed a gross
miscarriage of justice because its 2004 removal order relied on a regulation, 8
C.F.R. § 245.1(c)(8), that was invalidated by Bona v. Gonzales, 425 F.3d 663 (9th
Cir. 2005).
But we have held that, absent certain narrow exceptions which are not
relevant here, new rules do not apply retroactively in a collateral attack on prior
immigration proceedings. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169,
1172–1173 (9th Cir. 2001). And the BIA has previously declined to find a gross
miscarriage of justice unless a removal order “could not have withstood judicial
attack under the law” in effect at the time of its issuance or execution. Matter of
Farinas, 12 I. & N. Dec. 467, 472 (BIA 1967). Here, 8 C.F.R. § 245.1(c)(8) was
valid both at the issuance of the 2004 order and at the time of its self-execution
when Garduno voluntarily exited the country on an unknown date before March
12, 2005. Bona was not decided until nearly 18 months after the removal order
was issued. Further, Garduno did not petition for review of the 2004 order,
-2-
waiving his opportunity to obtain a holding similar to Bona’s in his own case. No
gross miscarriage of justice has occurred, and Garduno cannot collaterally attack
his 2004 removal order.
Garduno also contends that subsequent reliance by the IJ and the BIA on the
2004 removal order to deny him adjustment of status deprived him of the due
process of law. “However, aliens have no fundamental right to discretionary relief
from removal for purposes of due process.” Tovar-Landin v. Ashcroft, 361 F.3d
1164, 1167 (9th Cir. 2004). Because adjustment of status is a form of discretionary
relief, “denial of such relief cannot violate a substantive interest protected by the
Due Process clause.” Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d
1076, 1091 (9th Cir. 2010) (internal quotation marks omitted). Garduno cannot
prevail on his due process claims.
PETITION DENIED.
-3-