Wen Xu v. Holder , 380 F. App'x 712 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WEN XU, No. 07-72225
Petitioner, Agency No. A096-054-985
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Wen Xu, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s (“IJ”) order of removal and denying her motion to remand. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional
*
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).
claims. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We dismiss in
part, deny in part, grant in part, and remand.
We lack jurisdiction to review Xu’s contention that the agency abused its
discretion by denying her adjustment of status application as a matter of discretion.
Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir. 2006).
Xu has failed to establish that her due process rights were violated by the
BIA’s composition during the pendency of her administrative appeal. See Cano-
Merida, 311 F.3d at 964-65.
Because the BIA failed to address Xu’s contentions that the IJ’s conduct
violated due process, we remand for the BIA to consider these contentions in the
first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
Each party shall bear its own costs in this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; REMANDED.
2 07-72225