                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 02 2011

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




                              FOR THE NINTH CIRCUIT



JOSE ERNESTO LUNA-ACEVEDO,                        No. 09-70545

               Petitioner,                        Agency No. A094-205-624

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

               Respondent.



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

                             Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Jose Ernesto Luna-Acevedo, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s order finding that he knowingly participated in alien

smuggling in violation of 8 U.S.C. § 1227(a)(i)(E)(i). Our jurisdiction is governed


          *
             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).
by 8 U.S.C. § 1252. We review de novo claims of due process violations in

immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

      Luna-Acevedo’s due process rights were not violated by admission of the

Form I-213 because the form was probative and its admission was not

fundamentally unfair. See Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir. 1995)

(noting that “[t]he sole test for admission of evidence [in a deportation proceeding]

is whether the evidence is probative and its admission is fundamentally fair”).

      Luna-Acevedo’s due process rights were not violated when he was not given

an opportunity to question the preparer of the I-213, because he failed to produce

probative evidence casting doubt on the reliability of the form. See id.

      We lack jurisdiction to review Luna-Acevedo’s unexhausted contention

regarding the government’s alleged 8 C.F.R § 287.3(a) violation and related

hearsay contention. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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