                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


VERONICA PAULINA CANAR                           No. 10-71977
YANEZ,
                                                 Agency No. A073-050-375
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted November 19, 2014**
                               San Francisco, California

Before: THOMAS, Chief Judge, REINHARDT and CHRISTEN, Circuit Judges.

       Veronica Canar Yanez, a native and citizen of Ecuador, petitions for review

of an order from the Board of Immigration Appeals (BIA) denying her application


        *
             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).

                                          1
for adjustment of status, and an Immigration Judge’s denial of her request for

voluntary departure. We have jurisdiction under 8 U.S.C. § 1252(d) to consider

Canar Yanez’s administratively exhausted claims. We dismiss in part and deny in

part Canar Yanez’s petition.1

1.      To establish eligibility for adjustment of status an alien must prove she “is

eligible to receive an immigrant visa and is admissible to the United States for

permanent residence.” 8 U.S.C. § 1255(a)(2) (eligibility); see also 8 U.S.C. §

1229a(c)(4)(A)(i) (burden of proof). Here, evidence indicates that Canar Yanez is

permanently inadmissible for having “falsely represented . . . herself to be a citizen

of the United States.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Canar Yanez argues she did

not falsely represent herself to be a citizen because she could have been claiming to

be a non-citizen national by applying for a passport using a Puerto Rican birth

certificate. This argument impermissibly shifts the burden of proof. See 8 C.F.R §

1240.8(d) (“If the evidence indicates that one or more of the grounds for

mandatory denial of the application for relief may apply, the alien shall have the

burden of proving by a preponderance of the evidence that such grounds do not

apply.”). Further, persons born in Puerto Rico are United States citizens. 8 U.S.C.



        1
              The parties are familiar with the facts, so we will not recount them
here.

                                           2
§ 1402. By claiming that she and both her parents were born in Puerto Rico, Canar

Yanez could not have been claiming to be a non-citizen national. Canar Yanez has

not met her burden of proving that she is admissible to the United States, and she is

therefore ineligible for adjustment of status.

2.    Canar Yanez claims the BIA violated her right to due process by failing to

consider her argument that she did not sign the passport application. This claim

fails because Canar Yanez has not shown that she did not sign the application, or

that she was denied due process or prejudiced by any such denial. See Ram v.

Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). The BIA adequately explained

that Canar Yanez had the burden of proving her passport application did not

include a claim to United States citizenship and that she failed to meet her burden.

Even assuming Canar Yanez did not sign the passport application, she admitted to

completing a passport application indicating she was born in Puerto Rico, and to

purchasing a counterfeit Puerto Rican birth certificate. These admissions are

sufficient to show that she falsely represented herself to be a citizen whether or not

she signed the passport application.

3.    Because Canar Yanez did not argue before the BIA that her passport

application should not be considered as evidence, we lack jurisdiction to consider

that claim. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th

                                           3
Cir. 2004) (concluding that administrative exhaustion applies to due process claims

based on correctable procedural errors).

4.    We also lack jurisdiction to review denial of Canar Yanez’s application for

voluntary departure because she failed to exhaust this claim by raising it before the

BIA. See 8 U.S.C. § 1252(d)(1).

      PETITION DISMISSED IN PART AND DENIED IN PART.




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