                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 21 2010

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




                              FOR THE NINTH CIRCUIT



LUCIO REYES MAZON,                                No. 09-70562

               Petitioner,                        Agency No. A091-780-709

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Lucio Reyes Mazon, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his applications for

cancellation of removal and adjustment of status. We have jurisdiction under


          *
             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).
8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

determinations, Hernandez v. Mukasey, 345 F.3d 824, 843 (9th Cir. 2003) and we

review de novo due process claims, Cano Merida v. INS, 311 F.3d 960, 964 (9th

Cir. 2002). We deny the petition for review.

      We agree that Reyes Mazon has not met his burden to establish that he was

the beneficiary of an approved visa petition; a requirement for his application for

adjustment of status to proceed. See 8 U.S.C. § 1255(i)(B); cf. Hernandez, 345

F.3d at 843.

      Contrary to Reyes Mazon’s contention, the BIA properly concluded that the

IJ did not violate due process by not informing Reyes Mazon of his eligibility for a

Section 212(h) waiver, because the waiver was not applicable to the ground of

inadmissibility with which Reyes Mazon was charged. See 8 U.S.C. § 1182(h);

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding petitioner must

demonstrate error and substantial prejudice to prevail on a due process claim).

      Reyes Mazon does not challenge the agency’s conclusion that he is

statutorily ineligible to show good moral character so that contention is waived.

See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996).

      PETITION FOR REVIEW DENIED.




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