Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Immigration judge denied alien's application for suspension of deportation. Alien appealed. The Board of Immigration Appeals (BIA) affirmed, and alien appealed. The Court of Appeals held that: (1) service of order to show cause, before alien acquired seven years' continuous presence in United States, precluded claim that alien was ineligible for suspension of deportation, and (2) Barahona-Gomez decision, enjoining Immigration and Naturalization Service (INS) from deporting member of class challenging deportation procedures, who had been denied suspension of deportation, did not affect underlying decision to deny suspension.
Affirmed.
Petition for Review of an Order of the Board of Immigration Appeals.
Page 762.
Before FERNANDEZ, RYMER, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Edgardo Ong, a native and citizen of the Philippines, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge's denial of his application for suspension of deportation. We deny the petition.
Whether or not Ong is a "crewman," he is ineligible for suspension of deportation because he was served with an Order to Show Cause before he had acquired seven years continuous presence in the United States. As a result, he is ineligible for suspension of deportation under the stop-time rule. IIRIRA § 309(c)(5). Ong's argument that this violates his due process rights is foreclosed by Ram v. INS, 243 F.3d 510, 516-17 (9th Cir.2001).
Nor does it matter whether Ong belongs in the Barahona-Gomez class, see Barahona-Gomez v. Reno, No. C 97-0895 CW (N.D.Cal., Sept. 17, 1997), aff'd Barahona-Gomez v. Reno, 167 F.3d 1228, 1233 (9th Cir.1999), as he contends. Even if he were a class member, the Barahona-Gomez injunction merely enjoins the INS from deporting a class member who has been denied suspension of deportation but does not affect the underlying decision to deny suspension. Id. at 1233.
Finally, Ong must show both error and substantial prejudice to prevail on a due process challenge to deportation proceedings. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). Even if there were error on account of one judge's signing for another judge's decision, Ong has not shown that his case was prejudiced.
PETITION DENIED.