                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 13 2013

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




                              FOR THE NINTH CIRCUIT



VICENTE DAMIAN-RODRIGUEZ,                         No. 12-70897

               Petitioner,                        Agency No. A088-360-177

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

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Vicente Damian-Rodriguez, 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

cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review


          *
             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).
de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th

Cir. 2000), and we deny the petition for review.

      The BIA properly determined that the IJ did not violate Damian-Rodriguez’s

due process rights by excluding an untimely submitted therapist’s report from the

evidentiary record, where Damian-Rodriguez failed to demonstrate that the report

may have affected the outcome of the proceedings. See id. (requiring prejudice to

prevail on a due process challenge).

      Damian-Rodriguez failed to raise in his opening brief, and therefore waived,

any challenges to the BIA’s determination that his video-conference hearing did

not violate his due process rights, and to the agency’s hardship determination. See

Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in the

opening brief may be deemed waived).

      Damian-Rodriguez’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED.




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