                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 21 2011

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




                             FOR THE NINTH CIRCUIT



MARCO TULIO WONG,                                No. 08-71145

               Petitioner,                       Agency No. A074-439-089

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Marco Tulio Wong, a native and citizen of Guatemala, 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 and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252.


          *
             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).
We review de novo due process claims, Vasquez-Zavala v. Ashcroft, 324 F.3d

1105, 1107 (9th Cir. 2003), and we deny in part and dismiss in part the petition for

review.

      We reject Wong’s contention that the IJ violated due process by not

questioning him directly regarding whether he wished to withdraw his asylum

application because the IJ properly relied on the statement by Wong’s attorney that

Wong was withdrawing the application. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (petitioner must show error and prejudice to establish a due process

violation); 8 C.F.R. § 1292.4(a).

      We decline to reach Wong’s contention that the IJ failed to allow him to

renew his application because he did not raise this argument before the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We lack jurisdiction over

Wong’s unexhausted claim that his attorney was incompetent. See id.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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