                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2011

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




                             FOR THE NINTH CIRCUIT



BERTHA ZAMORA AGUIRRE,                           No. 10-70681

               Petitioner,                       Agency No. A075-772-026

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

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Bertha Zamora Aguirre petitions for review of the Board of Immigration

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

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

substantial evidence the agency’s findings of fact, and review de novo questions of


          *
             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).
law and due process claims. Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048 (9th

Cir. 2008). We deny the petition for review.

      Substantial evidence supports the BIA’s determination that the government

demonstrated Zamora Aguirre’s alienage by clear and convincing evidence, where

the record contains her husband’s asylum application and an attached birth

certificate indicating that Zamora Aguirre was born in Mexico. See 8 C.F.R.

§ 208.3(c)(1) (“information provided in the [asylum] application may be used . . .

to satisfy any burden of proof in . . . removal proceedings”); Ayala-Villanueva v.

Holder, 572 F.3d 736, 738 n.3 (9th Cir. 2009) (“[e]vidence of foreign birth gives

rise to a rebuttable presumption of alienage”).

      Contrary to Zamora Aguirre’s contention, the agency properly admitted and

relied on the asylum application. See 8 C.F.R. § 208.3(c)(3) (“If the Service has

not mailed the incomplete application back to the applicant within 30 days, it shall

be deemed complete.”); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir.

2003) (evidence is admissible in immigration proceedings when it is “probative

and its admission is fundamentally fair”).

      Zamora Aguirre’s right to invoke the Fifth Amendment was not violated

because she did not testify regarding her alienage. See U.S. v. Blackman, 72 F.3d




                                             2                                10-70681
1418, 1426 (9th Cir. 1995) (“The privilege against self-incrimination is personal,

and applies only to compulsion of the individual holding the privilege.”).

      PETITION FOR REVIEW DENIED.




                                          3                                   10-70681
