NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 23 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
SANDRA MIRNA FIGUEROA-OJEDA, No. 05-70927
Petitioner, Agency No. A019-144-050
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Sandra Mirna Figueroa-Ojeda, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming
an immigration judge’s (“IJ”) decision finding that she knowingly participated in
*
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).
/Research
alien smuggling. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de
novo questions of law and due process claims, and for substantial evidence the
agency’s findings of fact. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
Figueroa-Ojeda’s due process rights were not violated by the admission of
the smuggled alien’s Form I-213 because the form was probative and its admission
was fundamentally fair. See Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir. 1995)
(noting that “[t]he sole test for admission of evidence [in a deportation proceeding]
is whether the evidence is probative and its admission is fundamentally fair,” and
rejecting the argument that a Form I-213 was inadmissible as hearsay). Figueroa-
Ojeda was able to cross-examine the author of the forms, see id. at 311, and the
government made a reasonable effort to produce the smuggled alien to testify at the
hearing, see Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681-82 (9th Cir.
2005).
According to the Form I-213, the smuggled alien stated that he was going to
pay Figueroa-Ojeda $500 after they crossed the border. Substantial evidence
therefore supports the IJ’s determination that Figueroa-Ojeda knowingly
participated in the smuggling attempt. See Urzua Covarrubias v. Gonzales, 487
F.3d 742, 748-49 (9th Cir. 2007).
/Research 2 05-70927
We lack jurisdiction to review Figueroa-Ojeda’s contention that she did not
have an adequate opportunity to review the government’s evidence because she
failed to raise that issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (noting that due process challenges that are “procedural in nature”
must be exhausted).
Figueroa-Ojeda’s remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
/Research 3 05-70927