                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 19 2014

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



                             FOR THE NINTH CIRCUIT


HASSAN FAKIH,                                    No. 10-71556

              Petitioner,                        Agency No. A097-382-110

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

              Respondent.


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

                            Submitted February 12, 2014 **
                              San Francisco, California

Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge. ***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
              The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
      Petitioner Hassan Fakih, a native and citizen of Lebanon, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order affirming an

Immigration Judge’s (“IJ”) order finding that Petitioner is removable under 8

U.S.C. § 1227(a)(1)(G)(ii) because he entered into a marriage “for the purpose of

procuring [his] admission as an immigrant.” We deny in part and dismiss in part

the petition for review.

      1.     Petitioner claims the BIA erred when it found the IJ did not violate

Petitioner’s right to due process by admitting into evidence FBI Agent John

Victoravich’s summaries of recordings of phone calls Petitioner made while in

detention. Petitioner argues the BIA should have required the government to

submit complete transcripts of the calls. We review this due process claim de novo,

Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010), and affirm the BIA’s

ruling because Petitioner has not shown that the admission of the call summaries

prejudiced his case, see Robleto-Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir.

2010) (“In order to show a due process violation, [a petitioner] must show

prejudice. Prejudice is shown where the violation potentially affected the outcome

of the proceedings.” (citation omitted)). Petitioner asserts that the admission of the

call summaries violated the Federal Rules of Evidence, but those rules do not apply

in immigration proceedings. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir.


                                           2
2012) (per curiam) (“‘The sole test for admission of evidence is whether the

evidence is probative and its admission is fundamentally fair.’” (quoting Espinoza

v. INS, 45 F.3d 308, 310 (9th Cir. 1995))). He also asserts that the summaries are

“vague and misleading.” (Pet’r’s Br. 17.) But he has not identified any specific

inaccuracies in them and does not contend that he requested and was denied access

to the audio recordings of the conversations.

      2.     We lack jurisdiction to consider the remainder of Petitioner’s claims

because he failed to include them in his brief before the BIA. See Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (citing 8

U.S.C. § 1252(d)(1) and holding that a petitioner is “deemed to have exhausted

only those issues he raised and argued in his brief before the BIA”); Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction to review

due process claims based on correctable procedural errors unless the BIA has had

an opportunity to address them).

      PETITION FOR REVIEW DENIED in part and DISMISSED in part.




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