FILED
NOT FOR PUBLICATION JAN 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARLOS HUMBERTO DE PAZ No. 09-73377
FRANCO,
Agency No. A071-585-624
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Carlos Humberto De Paz Franco, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) removal order. We have
jurisdiction under 8 U.S.C. § 1252. We review de novo constitutional claims and
*
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).
questions of law and review for substantial evidence the agency’s factual findings,
Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009), and we review for abuse of
discretion the BIA’s denial of a motion to remand, Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1011 (9th Cir. 2006). We deny the petition for review.
Substantial evidence supports the agency’s determination that De Paz Franco
participated in alien smuggling as defined in 8 U.S.C. § 1182(a)(6)(E)(i) where the
record reflects that he admitted the factual allegation of alien smuggling and
conceded the charge of removability. See Young Sun Shin v. Mukasey, 547 F.3d
1019, 1024 (9th Cir. 2008) (finding substantial evidence for removability where
petitioner admitted factual allegation and conceded removability).
The BIA did not abuse its discretion in denying De Paz Franco’s motion to
remand, where the IJ had expressly afforded him the opportunity to litigate the
factual allegation that he had participated in alien smuggling and he opted instead
to admit the allegation and concede the charge of removability. See Romero-Ruiz
v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2009) (“The formal requirements of a
motion to remand and a motion to reopen are the same.”); see also 8 C.F.R.
§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it
appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”).
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We agree with the BIA that the proceedings were not “so fundamentally unfair that
[De Paz Franco] was prevented from reasonably presenting his case.” Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000) (citation omitted). Moreover, De Paz
Franco failed to demonstrate that additional testimony would have affected the
outcome of proceedings. See id. (requiring prejudice to prevail on a due process
challenge); see also Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir.
2009) (the obligation under 8 C.F.R. § 287.3 to notify the alien of his rights does
not attach until the filing of the Notice to Appear).
The agency therefore did not err in denying De Paz Franco’s applications for
special rule cancellation of removal, 8 C.F.R. § 1240.66(b)(3), and voluntary
departure, 8 U.S.C. § 1229c(b)(1)(B). See 8 U.S.C. § 1101(f)(3).
PETITION FOR REVIEW DENIED.
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