Campos v. Immigration & Naturalization Service

25 F. App'x 506

Opinion

MEMORANDUM

Footnotes

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Jose Vega Campos petitions for review of the Board of Immigration Appeals (“BIA”) decision denying his appeal from the decision of the Immigration Judge denying him discretionary § 212(c) relief from exclusion. The BIA first rendered its decision on the basis of erroneous facts not in the record, but then reconsidered its decision, on Campos’ motion, and affirmed the IJ’s decision denying § 212(c) relief, in its discretion, on the basis of the facts in the record. Because the discretionary denial of § 212(c) relief is not reviewable under IIRIRA, we lack jurisdiction over Campos’ petition for review. IIRIRA § 309(c)(4)(E) (“There shall be no appeal of any discretionary decision under § 212(c) ....”).

Campos also raises a due process claim based on the fact that the BIA initially considered facts not in the record in its decision. This court retains jurisdiction over constitutional claims despite the limitations on judicial review in IIRIRA § 309(c)(4)(E). Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001). We deny Campos’ constitutional claim on the merits, however, because Campos cannot show prejudice from the BIA’s error in light of the fact that the BIA reconsidered his application in the absence of the unsupported facts it had considered earlier. United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir.1985) (“[D]ue process challenges require a showing of prejudice.”).

Accordingly, we deny Campos’ petition for review.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.