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967 F2d 586 Garcilazo-Mejia v. US Immigration and Naturalization Service

967 F.2d 586

Rolando GARCILAZO-MEJIA, Petitioner,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70191.

United States Court of Appeals, Ninth Circuit.

Submitted June 10, 1992.*
Decided July 6, 1992.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before CHOY, SNEED and SKOPIL, Circuit Judges.

1

MEMORANDUM**

2

Rolando Garcilazo-Mejia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision. The BIA dismissed his appeal from an Immigration Judge's ("IJ") order denying his application for discretionary waiver of deportation. Garcilazo-Mejia contends that his due process right to fair administrative review was violated because part of the hearing before the IJ was not recorded due to an equipment malfunction. He also contends that the IJ violated his due process and statutory rights to a fair hearing by unfairly summarizing the unrecorded testimony. We reject these contentions and deny the petition.

DISCUSSION

3

Congress has directed that determinations of deportability "shall be made only upon a record made in a proceeding." 8 U.S.C. § 1252(b) (1988). Hearings conducted in such proceedings "shall be recorded verbatim." 8 C.F.R. § 242.15 (1991). Although the language of the regulation is mandatory, we have held that a violation of section 242.15 does not require reversal unless the alien demonstrates prejudice. See Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir.1985). Prejudice exists if an alien's rights are violated "in a manner so as potentially to affect the outcome of the proceedings." Barraza Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir.1990) (internal quotations omitted).

4

Here, Garcilazo-Mejia has not demonstrated that he was prejudiced by the lack of a verbatim record. A review of the BIA decision reflects a considered balancing of the favorable and unfavorable factors in his case and a careful scrutiny of the accuracy of the IJ's summation. Given these circumstances, we conclude that the BIA did not err by finding that Garcilazo-Mejia failed to show prejudice resulting from the recording malfunction and the IJ's subsequent summation.

5

PETITION DENIED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3