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NOT FOR PUBLICATION FEB 17 2010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.