                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 09 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOSE ALBERTO MARCIAL,                            No. 09-74093

               Petitioner,                       Agency No. A089-268-234

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Jose Alberto Marcial, a native and citizen of Mexico, 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 adjustment of

status. We review de novo claims of due process violations in removal


          *
             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).
proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the

petition for review.

      Marcial’s due process claims fail because the proceedings were not so

fundamentally unfair that he was prevented from reasonably presenting his case in

support of his adjustment of status application, and he failed to demonstrate

prejudice where the BIA, in its de novo review, concluded that Marcial’s positive

factors do not outweigh his criminal record. See id. at 971-72; see also Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)(where the BIA conducts its own

review of the evidence and law rather than simply adopting the IJ’s decision, our

review “is limited to the BIA’s decision, except to the extent the IJ’s opinion is

expressly adopted.”).

      PETITION FOR REVIEW DENIED.




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