                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUN 14 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN MANUEL GARDUNO CARLOS,                      No. 13-72734

              Petitioner,                        Agency No. A070-166-868

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                             Submitted June 10, 2016**
                               Pasadena, California

Before: KOZINSKI and WARDLAW, Circuit Judges and KORMAN,*** Senior
District Judge.

      Juan Manuel Garduno Carlos, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

        *
             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).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
from an immigration judge’s (“IJ”) order denying his application for adjustment of

status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law and constitutional claims. Coronado v. Holder, 759 F.3d 977,

982 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

      1.     We lack jurisdiction to review the agency’s discretionary denial of

adjustment of status, 8 U.S.C. § 1252(a)(2)(B)(i), except to the extent that the

petition for review raises “constitutional claims or questions of law,” id.

§ 1252(a)(2)(D). See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006)

(per curiam) (order).

      2.     Assuming that Garduno had a right to procedural due process in his

removal proceeding, the IJ did not deny Garduno due process by considering

evidence relating to his ex-girlfriend’s rape allegations. “In the immigration

context, hearsay is admissible if it is probative and its admission is fundamentally

fair, and hearsay evidence may not be rejected out-of-hand.” Gu v. Gonzales, 454

F.3d 1014, 1021 (9th Cir. 2006) (citations omitted). The government must make a

reasonable effort “to afford the alien a reasonable opportunity to confront the

witnesses against him or her.” Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.

1997) (citation omitted). This evidence was probative because Garduno’s violent

history with his ex-girlfriend was a serious adverse factor weighing against the


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discretionary adjustment of his status. The admission of this evidence was not

fundamentally unfair because Garduno had an opportunity to challenge the

evidence, and the IJ noted its hearsay nature. Moreover, the government

repeatedly attempted to make Garduno’s ex-girlfriend available for cross-

examination; indeed, Garduno’s ex-girlfriend was present at one of his removal

hearings. Under these circumstances, the IJ’s consideration of Garduno’s ex-

girlfriend’s allegations did not violate Garduno’s due process rights. See Saidane,

129 F.3d at 1065; cf. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 682 (9th

Cir. 2005) (holding that the admission of a hearsay statement violated due process

where the government “failed to make any ‘reasonable effort’ to produce the

hearsay declarant”).

      3.     The agency’s failure to transcribe a portion of Garduno’s removal

hearing did not violate due process, where Garduno failed to describe the contents

of the untranscribed testimony or assert that the agency did not adequately consider

this testimony. See Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994) (rejecting

due process claim of petitioner who “alleged that her true words were not spoken

by the interpreter, but has not indicated what, if anything, she would have said

differently if given a chance”).




                                         -3-
      4.     We lack jurisdiction to consider Garduno’s unexhausted claim that the

IJ failed to consider all relevant testimony. See Tijani v. Holder, 628 F.3d 1071,

1080 (9th Cir. 2010).

      PETITION FOR REVIEW DISMISSED in part, DENIED in part.




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