Vicente Garduno v. Eric Holder, Jr.

MEMORANDUM

Petitioner Vicente Garduno (“Garduno”) petitions for review of a 2011 Board of Immigration Appeals (“BIA”) order which dismissed his collateral attack on a 2004 BIA removal order. He raises two contentions in his petition for review: 1) that the BIA erred in dismissing his collateral attack on the 2004 order; and 2) that subsequent reliance by the immigration judge (“IJ”) and the BIA on the 2004 removal order to deny him adjustment of status relief denied him due process of law. We have jurisdiction under 8 U.S.C. § 1252 (a), and we deny the petition.

Absent a “gross miscarriage of justice,” an alien may not collaterally attack an earlier removal order. See Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir.1980) (per curiam). Garduño contends that the BIA committed a gross miscarriage of justice because its 2004 removal order relied on a regulation, 8 C.F.R. § 245.1 (c)(8), that whs invalidated by Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005).

But we have held that, absent certain narrow exceptions which are not relevant here, new rules do not apply retroactively in a collateral attack on prior immigration proceedings. See Alvarenga-Villalobos v. Ashcroft, 271…