Chavez-Gonzalez v. Gonzales , 210 F. App'x 666 ( 2006 )

MEMORANDUM ^*

Emiliano Chavez-Gonzalez appeals from a Board of Immigration Appeals (“BIA”) final order of removal. Pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231, 311, Chavez-Gonzalez’s petition for a writ of habeas corpus was transferred from the district court to this court as a petition for direct review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir. 2005). Chavez-Gonzalez alleges that the BIA unlawfully sustained the charge of inadmissibility under 8 U.S.C. § 1182(a)(2)(C) based solely on the contents of a “Record of Deportable/Inadmissible Alien” (“Form 1-213”). In addition, he claims violations of his statutory and constitutional due process rights.

The BIA determined that Chavez-Gonzalez was removable because immigration officers at the border had “reason to believe” that he knowingly participated in drug smuggling. See 8 U.S.C. § 1182(a)(2)(C). Although the REAL ID Act restores this court’s jurisdiction over questions of law regardless of the underlying offense, see id. § 1252(a)(2)(D), Chavez-Gonzalez’s sufficiency challenge does not raise a legal question and therefore we cannot consider this claim, id. § 1252(a)(2)(C).

As to Chavez-Gonzalez’s due process claims, it is unclear whether he properly exhausted these claims before the BIA; if he did not, this court lacks jurisdiction to review them on appeal. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). However, assuming Chavez-Gonzalez exhausted his administrative remedies, he has not established the requisite prejudice to sustain his due process claims. Because Chavez-Gonzalez conceded during his testimony that he made the statements memorialized in the Form 1-213, cross-examining the officer who prepared the document would not “potentially ... affect[ ] the outcome of the proceedings.” See Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir.2005) (internal quotation marks and emphasis omitted).

The petition for review is DISMISSED in part and DENIED in part.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.