Opinion
Argued and Submitted November 9, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Alien petitioned for judicial review of Board of Immigration Appeals' (BIA) denial of his appeal challenging denial of discretionary relief from exclusion. The Court of Appeals held that: (1) jurisdiction did not exist over petition for review, and (2) alien's due process rights were not violated.
Petition for review denied.
Page 507.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before PREGERSON, REINHARDT, and SILVERMAN, Circuit Judges.
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.
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.