Marco Wong v. Eric H. Holder Jr. , 440 F. App'x 527 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCO TULIO WONG, No. 08-71145
Petitioner, Agency No. A074-439-089
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Marco Tulio Wong, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for cancellation of
removal and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252.
*
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).
We review de novo due process claims, Vasquez-Zavala v. Ashcroft, 324 F.3d
1105, 1107 (9th Cir. 2003), and we deny in part and dismiss in part the petition for
review.
We reject Wong’s contention that the IJ violated due process by not
questioning him directly regarding whether he wished to withdraw his asylum
application because the IJ properly relied on the statement by Wong’s attorney that
Wong was withdrawing the application. See Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (petitioner must show error and prejudice to establish a due process
violation); 8 C.F.R. § 1292.4(a).
We decline to reach Wong’s contention that the IJ failed to allow him to
renew his application because he did not raise this argument before the BIA. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We lack jurisdiction over
Wong’s unexhausted claim that his attorney was incompetent. See id.PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-71145