FILED
NOT FOR PUBLICATION FEB 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HASSAN FAKIH, No. 10-71556
Petitioner, Agency No. A097-382-110
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2014 **
San Francisco, California
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge. ***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Petitioner Hassan Fakih, a native and citizen of Lebanon, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order affirming an
Immigration Judge’s (“IJ”) order finding that Petitioner is removable under 8
U.S.C. § 1227(a)(1)(G)(ii) because he entered into a marriage “for the purpose of
procuring [his] admission as an immigrant.” We deny in part and dismiss in part
the petition for review.
1. Petitioner claims the BIA erred when it found the IJ did not violate
Petitioner’s right to due process by admitting into evidence FBI Agent John
Victoravich’s summaries of recordings of phone calls Petitioner made while in
detention. Petitioner argues the BIA should have required the government to
submit complete transcripts of the calls. We review this due process claim de novo,
Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010), and affirm the BIA’s
ruling because Petitioner has not shown that the admission of the call summaries
prejudiced his case, see Robleto-Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir.
2010) (“In order to show a due process violation, [a petitioner] must show
prejudice. Prejudice is shown where the violation potentially affected the outcome
of the proceedings.” (citation omitted)). Petitioner asserts that the admission of the
call summaries violated the Federal Rules of Evidence, but those rules do not apply
in immigration proceedings. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir.
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2012) (per curiam) (“‘The sole test for admission of evidence is whether the
evidence is probative and its admission is fundamentally fair.’” (quoting Espinoza
v. INS, 45 F.3d 308, 310 (9th Cir. 1995))). He also asserts that the summaries are
“vague and misleading.” (Pet’r’s Br. 17.) But he has not identified any specific
inaccuracies in them and does not contend that he requested and was denied access
to the audio recordings of the conversations.
2. We lack jurisdiction to consider the remainder of Petitioner’s claims
because he failed to include them in his brief before the BIA. See Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (citing 8
U.S.C. § 1252(d)(1) and holding that a petitioner is “deemed to have exhausted
only those issues he raised and argued in his brief before the BIA”); Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction to review
due process claims based on correctable procedural errors unless the BIA has had
an opportunity to address them).
PETITION FOR REVIEW DENIED in part and DISMISSED in part.
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