Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the District of Arizona, Roslyn O. Silver, J., of re-entry into the United States after deportation. Defendant appealed. The Court of Appeals held that: (1) defendant's Legal Permanent Resident (LPR) status had terminated, and he thus was no longer entitled to re-enter United States based on such status; (2) government did not fail to provide defendant with notice that his LPR status was in jeopardy; and (3) immigration judge (IJ) was not required to inform defendant of possibility of relief from deportation.
Affirmed.
Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding.
Before KOZINSKI and KLEINFELD, Circuit Judges, and KARLTON, District Judge.
The Honorable Lawrence K. Karlton, Senior United States District Judge for the Eastern District of California, sitting by designation.
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.
Appellant was convicted of re-entry into the United States after deportation in violation
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of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(2). Prior to trial, he brought a "Motion for Acquittal," which was denied.
Appellant appeals the denial of his motion for acquittal, arguing, as an initial matter, that he was entitled to re-enter the country based on his status as a Legal Permanent Resident (LPR). As this court recently made clear, however, an alien's LPR status terminates upon the entry of a final deportation order. See United States v. Reyna-Tapia, 294 F.3d 1192, 1196-97 (2002).
In the alternative, appellant contends that the trial court should have sustained his collateral attack on the order of deportation, arguing that the underlying deportation proceedings did not comport with due process. Appellant first argues that his deportation proceedings were constitutionally defective because he was not given notice that his LPR status was in jeopardy. As this court recently observed, however, the notice of deportation given to appellant "should have put [him] on notice that his 'privilege of residing permanently in the United States as an immigrant,' in other words his LPR status, was at risk." Id. at 1197 (quoting 8 U.S.C. § 1101(a)(20)).
Appellant next contends that he was not given adequate notice of the possibility of a discretionary waiver of deportation under section 212(c) of the INA, 8 U.S.C. § 1182(c), repealed by Pub.L. 104-208 Div. C, Title III, § 304(b), 110 Stat. 3009-597 (1996). It is well-established that, where the record before the immigration judge "raises a reasonable possibility of relief from deportation ... it is a denial of due process to fail to inform an alien of that possibility at the deportation hearing." United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th Cir.2001)(internal quotation marks omitted). Here, however, there was no reasonable possibility that appellant could receive relief under section 212(c) of the INA because petitioner could not meet the seven-year residency requirement. Even assuming that the immigration judge could have foreseen Ortega de Robles v. INS, 58 F.3d 1355, 1359 (9th Cir.1995), and Foroughi v. INS, 60 F.3d 570, 575-76 (9th Cir.1995), at the time of appellant's 1994 deportation hearing, under those cases appellant would have been two months short of eligibility for section 212(c) waiver when his BIA appeal was finally dismissed.
AFFIRMED.