Jose Luna-Acevedo v. Eric Holder, Jr., No. 09-70545 (9th Cir. 2011)
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FILED MAR 02 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE ERNESTO LUNA-ACEVEDO, Petitioner, No. 09-70545 Agency No. A094-205-624 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Jose Ernesto Luna-Acevedo, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s order finding that he knowingly participated in alien smuggling in violation of 8 U.S.C. § 1227(a)(i)(E)(i). Our jurisdiction is governed * 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). by 8 U.S.C. § 1252. We review de novo claims of due process violations in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review. Luna-Acevedo s due process rights were not violated by admission of the Form I-213 because the form was probative and its admission was not fundamentally unfair. 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 ). Luna-Acevedo s due process rights were not violated when he was not given an opportunity to question the preparer of the I-213, because he failed to produce probative evidence casting doubt on the reliability of the form. See id. We lack jurisdiction to review Luna-Acevedo s unexhausted contention regarding the government s alleged 8 C.F.R § 287.3(a) violation and related hearsay contention. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 09-70545
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