                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 01 2010

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




                             FOR THE NINTH CIRCUIT



WEN XU,                                          No. 07-72225

               Petitioner,                       Agency No. A096-054-985

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Wen Xu, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

judge’s (“IJ”) order of removal and denying her motion to remand. Our

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


          *
             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).
claims. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We dismiss in

part, deny in part, grant in part, and remand.

      We lack jurisdiction to review Xu’s contention that the agency abused its

discretion by denying her adjustment of status application as a matter of discretion.

Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir. 2006).

      Xu has failed to establish that her due process rights were violated by the

BIA’s composition during the pendency of her administrative appeal. See Cano-

Merida, 311 F.3d at 964-65.

      Because the BIA failed to address Xu’s contentions that the IJ’s conduct

violated due process, we remand for the BIA to consider these contentions in the

first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).

      Each party shall bear its own costs in this petition for review.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; REMANDED.




                                           2                                   07-72225
