Passano v. Gonzales

223 F. App'x 614

Opinion

MEMORANDUM *

Americo Passano petitions for review of the Board of Immigration Appeals’ affirmance of an order of deportation issued by an Immigration Judge. Because he raises a question of law, we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). We deny the petition.

Passano claims that the immigration judge (“IJ”) violated his due process rights by not informing him of the possibility of pre-hearing voluntary departure. To succeed on this claim, Passano must show “that the outcome of the proceeding may have been affected by the alleged violation.” ¹ Because Passano was ineligible for pre-hearing voluntary departure, he cannot make such a showing.

Passano was convicted of two aggravated felonies in 1991. Although an IJ found that Passano was deportable in 1994 based on these convictions, the IJ granted Passano’s application for a waiver of deportability under former INA § 212(c).² However, a section 212(c) waiver of deportability does not waive consideration of prior convictions for future deportation proceedings.³

Thus, Passano’s 1991 convictions may be considered for purposes of determining whether he was eligible for pre-hearing voluntary departure. Because his 1991 convictions were for aggravated felonies, Passano was not eligible for pre-hearing voluntary departure.⁴ As a result, the IJ’s failure to inform Passano about the possibility of pre-hearing voluntary departure did not violate Passano’s due process rights.

PETITION DENIED.

Footnotes

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir.2006).

2

. 8 U.S.C. § 1182(c) (repealed 1996).

3

. See Molina-Amezcua v. INS, 6 F.3d 646, 647-48 (9th Cir. 1993). See also In re Balderas, 20 I & N. Dec. 389, 391 (BIA 1991).

4

. See 8 C.F.R. § 1240.26(b)(l)(i)(E) (providing that an alien does not qualify for pre-hearing voluntary departure if he has "been convicted of an aggravated felony”).