MacHuca-segura v. Holder , 395 F. App'x 356 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 07 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ABEL ALFONSO MACHUCA- No. 07-73629
SEGURA,
Agency No. A91-526-203
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Attorney General,**
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 2, 2010***
Pasadena, California
Before: O’SCANNLAIN, GOULD and IKUTA, Circuit Judges.
The Board of Immigration Appeals (“BIA”) did not err in rejecting
Machuca-Segura’s collateral attack on his 1992 deportation order. Applying the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Eric H. Holder is substituted for his predecessor Michael B. Mukasey
as United States Attorney General. Fed. R. App. P. 43(c)(2).
***
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
law in effect as of the 1992 deportation hearing, see Matter of Malone, 11 I. & N.
Dec. 730, 731–32 (BIA 1966); see generally Hernandez-Almanza v. INS, 547 F.2d
100, 102–03 (9th Cir. 1976), an Immigration Judge (“IJ”) had a duty to inform an
alien of relief for which he was eligible based on information in the record, see 8
C.F.R. § 242.17(a) (1992). The IJ had no duty, however, to inform Machuca-
Segura of his eligibility for relief as a lawful permanent resident, because
Machuca-Segura deliberately concealed his identity and facts relevant to that
status. See, e.g., Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir. 1989).
Machuca-Segura has also failed to establish that his statutory right to counsel was
violated at the 1992 deportation hearing, see Comm. of Cent. Am. Refugees v. INS,
795 F.2d 1434, 1439 (9th Cir. 1986), or that the unavailability of a transcript from
the hearing resulted in prejudice, see Silva v. Carter, 326 F.2d 315, 322 (9th Cir.
1963). Accordingly, the IJ’s issuance of the 1992 deportation order was not a
gross miscarriage of justice. Ramirez-Juarez v. INS, 633 F.2d 174, 175–76 (9th
Cir. 1980) (per curiam).
We also reject Machuca-Segura’s claim that his due process rights were
violated in the 2005 and 2007 removal proceedings. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000). Machuca-Segura concedes that the IJ recused himself
upon learning that he had been the trial attorney in the 1992 proceeding.
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Moreover, Machuca-Segura has not identified any information in the missing
transcripts for the 2005 and 2007 hearings that would have altered the outcome of
his case. United States v. Medina, 236 F.3d 1028, 1032 (9th Cir. 2001).
Because the 1992 deportation order did not result from a gross miscarriage
of justice, it retains its validity and effectively terminated Machuca-Segura’s status
as a lawful permanent resident. See 8 U.S.C. § 1101(a)(20) (1988); see also 8
C.F.R. § 1001.1(p); Foroughi v. INS, 60 F.3d 570, 575 (9th Cir. 1995). He is
therefore ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) or
waiver of inadmissibility under 8 U.S.C. § 1182(c) (1994), both of which expressly
apply only to lawful permanent residents.
PETITION DENIED.
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