FILED
NOT FOR PUBLICATION MAY 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALOME DOMINGA MALDONADO- No. 13-72219
RODAS,
Agency No. A075-526-124
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Salome Dominga Maldonado-Rodas, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion
to reopen in absentia removal proceedings. We have jurisdiction under 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen and
review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-
92 (9th Cir. 2005). We deny the petition for review.
In her opening brief, Maldonado-Rodas fails to raise, and therefore has
waived, any challenge to the agency’s determination that she received proper
notice of the hearing at which she was ordered removed in absentia. See Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a
contention by failing to raise it in the opening brief).
The agency did not abuse its discretion in denying Maldonado-Rodas’
motion to reopen, where notice was proper and she did not establish that her failure
to appear was due to exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C).
Maldonado-Rodas’ contention that the IJ in her original removal
proceedings violated due process by ordering her removed in absentia fails for lack
of prejudice, where notice was proper, and Maldonado-Rodas does not dispute that
she failed to appear at her hearing or that she was removable as charged. See 8
U.S.C. § 1229a(b)(5)(A); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to
prevail on a due process challenge, an alien must show error and prejudice).
Maldonado-Rodas also contends that the IJ who decided her motion to
reopen violated due process by providing her access to her immigration file only
2 13-72219
after denying the motion, and that the BIA violated due process by declining to
produce a transcript of proceedings. These claims fail where Maldonado-Rodas
has not established prejudice resulting from either of these actions, the agency
made audio recordings of proceedings available prior to her BIA appeal, and her
attorney in fact reviewed the audio recordings of proceedings prior to filing her
brief to the BIA. See Lata, 204 F.3d at 1246; Singh v. Holder, 638 F.3d 1196,
1208 (9th Cir. 2011) (“[In] lieu of providing a transcript, the immigration court
may record [bond] hearings and make the audio recordings available for appeal
upon request.”).
We deny Maldonado-Rodas’ motion for a stay to seek prosecutorial
discretion.
PETITION FOR REVIEW DENIED.
3 13-72219