FILED
NOT FOR PUBLICATION JAN 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THE VAN DANG, No. 08-75164
Petitioner, Agency No. A025-092-019
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
The Van Dang, a native and citizen of Vietnam, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order sustaining the government’s appeal
from an immigration judge’s (“IJ”) decision granting his application for a waiver
of inadmissibility under former section 212(c) of the Immigration and Nationality
*
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).
Act. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
constitutional claims and questions of law, Vargas-Hernandez v. Gonzales, 497
F.3d 919, 921 (9th Cir. 2007), and we deny the petition for review.
Contrary to Dang’s contention, the BIA did not exceed its regulatory
authority by engaging in its own fact-finding or conducting a de novo review of the
IJ’s factual findings, but rather properly reviewed de novo whether to grant relief
as a matter of discretion. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review
questions of . . . discretion . . . de novo.”).
Dang’s contention that the BIA violated due process by failing to consider
evidence of his rehabilitation fails because he has not overcome the presumption
that the BIA did review the record. See Larita-Martinez v. INS, 220 F.3d 1092,
1096 (9th Cir. 2000) (petitioner cannot overcome presumption of record review by
pointing out that the BIA did not specifically mention certain evidence).
Dang’s contention that the BIA violated due process by mischaracterizing
the facts concerning his mother’s and his children’s deaths fails for lack of
prejudice. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010)
(petitioner must show prejudice to prevail on a due process claim). His contention
that the BIA mischaracterized the facts concerning past acts of violence is
unsupported by the record.
2 08-75164
Finally, Dang’s contention that the BIA acted ultra vires by ordering him
removed instead of remanding to the IJ for entry of an order of removal is
foreclosed by Lolong v. Ashcroft, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc)
(where the IJ makes a finding of removability before granting relief, that finding
constitutes an order of removal, and the BIA’s reversal of relief simply reinstates
the IJ’s order).
PETITION FOR REVIEW DENIED.
3 08-75164