Opinion
No. 05-70927.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 23, 2010.
Teodora D. Purcell, Esquire, Aguirre Law Group, APC, San Diego, CA, for Petitioner.
Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, OIL, Barry A. Weiner, Esquire, Norah Ascoli Schwarz, Senior Litigation Counsel, U.S. Department of Justice, Elizabeth J. Stevens, Assistant Director, Office of Immigration Litigation, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A019-144-050.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sandra Mirna Figueroa-Ojeda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order summarily affirming an immigration judge's ("IJ") decision finding that she knowingly participated in alien smuggling. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and due process claims, and for substantial evidence the agency's findings of fact. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
Figueroa-Ojeda's due process rights were not violated by the admission of the smuggled alien's Form I-213 because the form was probative and its admission was fundamentally fair. See Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir. 1995) (noting that "[t]he sole test for admission of evidence [in a deportation proceeding] is whether the evidence is probative and its admission is fundamentally fair," and rejecting the argument that a Form I-213 was inadmissible as hearsay). Figueroa-Ojeda was able to cross-examine the author of the forms, see id. at 311, and the government made a reasonable effort to produce the smuggled alien to testify at the hearing, see Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681-82 (9th Cir. 2005).
According to the Form I-213, the smuggled alien stated that he was going to pay Figueroa-Ojeda $500 after they crossed the border. Substantial evidence therefore supports the IJ's determination that Figueroa-Ojeda knowingly participated in the smuggling attempt. See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748-49 (9th Cir. 2007).
We lack jurisdiction to review Figueroa-Ojeda's contention that she did not have an adequate opportunity to review the government's evidence because she failed to raise that issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (noting that due process challenges that are "procedural in nature" must be exhausted).
Figueroa-Ojeda's remaining contentions are unpersuasive.