Vega-Andrade v. Holder , 362 F. App'x 835 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JORGE VEGA-ANDRADE, No. 05-73953
Petitioner, Agency No. A075-178-365
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Jorge Vega-Andrade, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision finding him removable for participating in
*
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).
SS/Research
alien smuggling. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de
novo claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1107 (9th Cir. 2003), and review for substantial evidence the agency’s findings of
fact, Urzua Covarrubias v. Gonzales, 487 F.3d 742, 744 (9th Cir. 2007). We
dismiss in part and deny in part the petition for review.
Substantial evidence supports the IJ’s finding that Vega-Andrade was
removable for alien smuggling where the record contains Vega-Andrade’s sworn
statement admitting that he knew the passenger in his vehicle had no legal
documentation and that he had made arrangements to pick her up in Mexico. See
Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005) (requiring act of
assistance or encouragement). Substantial evidence supports the IJ’s decision to
credit the sworn statement over petitioner’s inconsistent testimony concerning
whether he knew the identity and unlawful alien status of the passenger in his car.
See Wang v. INS, 352 F.3d 1250, 1258-59 (9th Cir. 2003).
We lack jurisdiction to review Vega-Andrade’s unexhausted due process
claim regarding the cross-examination of Officer Hernandez. See Tall v. Mukasey,
517 F.3d 1115, 1120 (9th Cir. 2008) (although petitioner “raised his due process
rights in his brief to the BIA,” he failed to exhaust the particular procedural errors
presented to the court of appeals). Even if the claim were exhausted,
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Vega-Andrade has not shown prejudice from the alleged violation. See Cano-
Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002). We also lack jurisdiction to
consider Vega-Andrade’s unexhausted due process claim regarding the opportunity
to obtain evidence from the smugglee. See Tall, 517 F.3d at 1120.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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