Duarte v. Holder , 365 F. App'x 839 ( 2010 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                FEB 17 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARIA GUTIERREZ DUARTE,                          No. 05-76819
    Petitioner,                        Agency No. A073-932-574
    v.
    MEMORANDUM *
    ERIC H. HOLDER Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted February 12, 2010**
    Pasadena, California
    Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
    District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Ralph R. Beistline, United States District Judge for the
    District of Alaska, sitting by designation.
    Maria Gutierrez-Duarte petitions for review of the Board of Immigration
    Appeals’s denial of her request to remand. We have jurisdiction pursuant to 
    8 U.S.C. § 1252
     and deny the petition for review.
    Duarte argues that the BIA violated her right to due process by not
    considering whether her cousin was a “daughter” for purposes of an 
    8 U.S.C. § 1182
    (d)(11) waiver. The record is to the contrary. The BIA rejected Duarte’s
    remand request because she failed to establish two elements necessary for remand
    — that she was prima facie eligible for the waiver and that her new evidence was
    previously unavailable. Romero-Ruiz v. Mukasey, 
    538 F.3d 1057
    , 1063-64 (9th
    Cir. 2008); 
    8 C.F.R. § 1003.2
    (c) (setting forth the requirements of a motion to
    remand/reopen). The BIA held that Duarte was not eligible for the waiver because
    the plain statutory language of § 
    8 U.S.C. § 1182
    (d)(11) does not include cousins
    among the list of qualifying relatives. The BIA clearly considered the claim and
    no due process violation occurred. Lata v. INS, 
    204 F.3d 1241
    , 1246 (9th Cir.
    2000) (requiring both error and prejudice for a due process violation).
    PETITION FOR REVIEW DENIED.
    

Document Info

Docket Number: 05-76819

Citation Numbers: 365 F. App'x 839

Judges: Thomas, Silverman, Beistline

Filed Date: 2/17/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024