Duarte v. Holder

FILED
NOT FOR PUBLICATION FEB 17 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA GUTIERREZ DUARTE, No. 05-76819

Petitioner, Agency No. A073-932-574

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, 2010**
Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
 Maria Gutierrez-Duarte petitions for review of the Board of Immigration

Appeals’s denial of her request to remand. We have jurisdiction pursuant to 8

U.S.C. § 1252 and deny the petition for review.

Duarte argues that the BIA violated her right to due process by not

considering whether her cousin was a “daughter” for purposes of an 8 U.S.C. §

1182(d)(11) waiver. The record is to the contrary. The BIA rejected Duarte’s

remand request because she failed to establish two elements necessary for remand

— that she was prima facie eligible for the waiver and that her new evidence was

previously unavailable. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063-64 (9th

Cir. 2008); 8 C.F.R. § 1003.2(c) (setting forth the requirements of a motion to

remand/reopen). The BIA held that Duarte was not eligible for the waiver because

the plain statutory language of § 8 U.S.C. § 1182(d)(11) does not include cousins

among the list of qualifying relatives. The BIA clearly considered the claim and

no due process violation occurred. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000) (requiring both error and prejudice for a due process violation).

PETITION FOR REVIEW DENIED.