FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO MARCIAL, No. 09-74093
Petitioner, Agency No. A089-268-234
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Jose Alberto Marcial, 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 denying his application for adjustment of
status. We review de novo claims of due process violations in removal
*
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).
proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the
petition for review.
Marcial’s due process claims fail because the proceedings were not so
fundamentally unfair that he was prevented from reasonably presenting his case in
support of his adjustment of status application, and he failed to demonstrate
prejudice where the BIA, in its de novo review, concluded that Marcial’s positive
factors do not outweigh his criminal record. See id. at 971-72; see also Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)(where the BIA conducts its own
review of the evidence and law rather than simply adopting the IJ’s decision, our
review “is limited to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.”).
PETITION FOR REVIEW DENIED.
2 09-74093