Machuca-Segura, et al v. Holder, No. 07-73629 (9th Cir. 2010)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 07 2010 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ABEL ALFONSO MACHUCASEGURA, No. 07-73629 Agency No. A91-526-203 Petitioner, MEMORANDUM * v. 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 MachucaSegura 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. 2 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. 3
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