                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENNETH MICHAEL MYERS,                           No. 07-72858

              Petitioner,                        Agency No. A030-772-080

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted October 4, 2010
                              Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       The Board of Immigration Appeals’s (“BIA”) denial of Kenneth Michael

Myers’s (“Myers”) request to terminate his removal proceedings was not an error,

because the April 26, 2004 letter from the Department of Homeland Security

(“DHS”) did not constitute an affirmative communication that Myers had prima



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
facie eligibility to naturalize. Indeed, DHS lacked the power to issue such a

communication because Myers was then in removal proceedings. 8 U.S.C. § 1429.

Contrary to Myers’s assertions, the regulations governing termination of removal

do not create a Catch-22 situation for aliens seeking to naturalize while in removal

proceedings; rather, an alien must obtain the requisite “affirmative

communication” from the DHS “prior to, and outside, the [removal] proceedings.”

Hernandez de Anderson v. Gonzales, 497 F.3d 927, 934 (9th Cir. 2007) (emphasis

added).

      Myers did not demonstrate reliance on the now-repealed § 212(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(c), when he rejected a plea

agreement and elected a jury trial, and therefore he is not now entitled to § 212(c)

relief. See INS v. St. Cyr, 533 U.S. 289, 325–26 (2001); Armendariz-Montoya v.

Sonchik, 291 F.3d 1116, 1121–22 (9th Cir. 2002). For the same reason, Myers

failed to demonstrate reliance on the prior version of § 101(a)(13), 8 U.S.C.

§ 1101(a)(13), and therefore he was not entitled to avoid being deemed

inadmissible upon his reentry into the country. See Camins v. Gonzales, 500 F.3d

872, 884–85 (9th Cir. 2007).

      Because Myers was inadmissible and therefore statutorily ineligible for

§ 212(c) relief, he cannot establish prejudice stemming from the IJ’s denial of


                                          2
Myers’s request to submit evidence regarding the equities of his case; thus, his due

process rights were not violated. See Ibarra-Flores v. Gonzales, 439 F.3d 614,

620–21 (9th Cir. 2006). Finally, because there is a rational basis for Congress’s

distinction between aliens who sought § 212(c) relief prior to its repeal and those

who did so after, Myers cannot demonstrate an equal protection violation. See de

Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004).

      PETITION DENIED.




                                          3
