                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 27 2010

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




                            FOR THE NINTH CIRCUIT



BALDEV SINGH,                                    No. 05-73018

              Petitioner,                        Agency No. A072-693-223

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

              Respondent.



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




                       Argued and Submitted May 14, 2010
                            San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge. **




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Patricia C. Fawsett, Senior United States District Judge
for the Middle District of Florida, sitting by designation.
      Baldev Singh (“petitioner”), a native and citizen of India, appeals the Board

of Immigration Appeals’ (“BIA”) dismissal of an immigration judge’s (“IJ”) denial

of the joint motion to terminate removal proceedings and the denial of his claims

for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). This court reviews de novo due process claims. Iturribarria v.

INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition.

      Petitioner argues that the IJ violated his due process rights by denying the

joint motion to terminate removal proceedings and by allowing limited testimony

at the hearing. “The Fifth Amendment guarantees due process in deportation

proceedings.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). To establish a

due process violation, an alien must show that the proceeding was “so

fundamentally unfair that [he] was prevented from reasonably presenting his case.”

Id. (citing Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)). The alien

must also show prejudice which requires him to demonstrate that the outcome of

the proceeding may have been affected by the alleged violation. Id.

      In this case, the BIA properly found that the IJ did not violate petitioner’s

due process rights. The IJ’s denial of the motion to terminate removal proceedings

was not “so fundamentally unfair that [petitioner] was prevented from reasonably

presenting his case.” See Tijani v. Holder, 598 F.3d 647, 649 n.1 (9th Cir. 2010).


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Petitioner filed an asylum application in California after he knew that he was

already in exclusion proceedings in New York, where he failed to appear.

Petitioner, not the government, chose to proceed in California. Because petitioner

sought to proceed in California and there is no evidence that petitioner was not able

to present his case, he fails to show his due process rights were violated. See id.

      Similarly, the IJ did not violate petitioner’s due process rights by allowing

only limited testimony at the hearing. At the hearing, the government presented

evidence that petitioner had entered the United States through New York in 1993

using a different name. Petitioner testified that he was not this individual, even

though fingerprint evidence clearly established otherwise. Because petitioner

testified inconsistently regarding his identity, and the IJ properly made an adverse

credibility finding on this basis, there was no violation in not permitting petitioner

to elaborate on the alleged details of his persecution. See id.; Farah v. Ashcroft,

348 F.3d 1153, 1156 (9th Cir. 2003) (holding that the adverse credibility finding

was supported based on discrepancies regarding identity).

      Because petitioner failed to raise an argument regarding the IJ’s adverse

credibility finding in his brief to the BIA, we lack jurisdiction to consider claims

regarding the finding. See Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008)

(holding that this court lacked jurisdiction where the alien only made a general


                                           3
challenge to the IJ’s decision and failed to mention the issue in his brief to the

BIA).

        PETITION DENIED.




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