                               NOT FOR PUBLICATION

                        UNITED STATES COURT OF APPEALS                     FILED
                                FOR THE NINTH CIRCUIT                       FEB 23 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 SANDRA MIRNA FIGUEROA-OJEDA,                       No. 05-70927

                 Petitioner,                        Agency No. A019-144-050

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

                 Respondent.



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

                               Submitted February 16, 2010 **

Before:          FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Sandra Mirna Figueroa-Ojeda, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming

an immigration judge’s (“IJ”) decision finding that she knowingly participated in



            *
             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).

/Research
alien smuggling. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de

novo questions of law and due process claims, and for substantial evidence the

agency’s findings of fact. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

         Figueroa-Ojeda’s due process rights were not violated by the admission of

the smuggled alien’s Form I-213 because the form was probative and its admission

was fundamentally fair. 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,” and

rejecting the argument that a Form I-213 was inadmissible as hearsay). Figueroa-

Ojeda was able to cross-examine the author of the forms, see id. at 311, and the

government made a reasonable effort to produce the smuggled alien to testify at the

hearing, see Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681-82 (9th Cir.

2005).

         According to the Form I-213, the smuggled alien stated that he was going to

pay Figueroa-Ojeda $500 after they crossed the border. Substantial evidence

therefore supports the IJ’s determination that Figueroa-Ojeda knowingly

participated in the smuggling attempt. See Urzua Covarrubias v. Gonzales, 487

F.3d 742, 748-49 (9th Cir. 2007).


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        We lack jurisdiction to review Figueroa-Ojeda’s contention that she did not

have an adequate opportunity to review the government’s evidence because she

failed to raise that issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (noting that due process challenges that are “procedural in nature”

must be exhausted).

        Figueroa-Ojeda’s remaining contentions are unpersuasive.

        PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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