                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 24 2011

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




                             FOR THE NINTH CIRCUIT



CARLOS HUMBERTO DE PAZ                           No. 09-73377
FRANCO,
                                                 Agency No. A071-585-624
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Carlos Humberto De Paz Franco, 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”) removal order. We have

jurisdiction under 8 U.S.C. § 1252. We review de novo constitutional claims and

          *
             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).
questions of law and review for substantial evidence the agency’s factual findings,

Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009), and we review for abuse of

discretion the BIA’s denial of a motion to remand, Garcia-Quintero v. Gonzales,

455 F.3d 1006, 1011 (9th Cir. 2006). We deny the petition for review.

      Substantial evidence supports the agency’s determination that De Paz Franco

participated in alien smuggling as defined in 8 U.S.C. § 1182(a)(6)(E)(i) where the

record reflects that he admitted the factual allegation of alien smuggling and

conceded the charge of removability. See Young Sun Shin v. Mukasey, 547 F.3d

1019, 1024 (9th Cir. 2008) (finding substantial evidence for removability where

petitioner admitted factual allegation and conceded removability).

      The BIA did not abuse its discretion in denying De Paz Franco’s motion to

remand, where the IJ had expressly afforded him the opportunity to litigate the

factual allegation that he had participated in alien smuggling and he opted instead

to admit the allegation and concede the charge of removability. See Romero-Ruiz

v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2009) (“The formal requirements of a

motion to remand and a motion to reopen are the same.”); see also 8 C.F.R.

§ 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it

appears to the Board that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former hearing.”).


                                          2                                      09-73377
We agree with the BIA that the proceedings were not “so fundamentally unfair that

[De Paz Franco] was prevented from reasonably presenting his case.” Colmenar v.

INS, 210 F.3d 967, 971 (9th Cir. 2000) (citation omitted). Moreover, De Paz

Franco failed to demonstrate that additional testimony would have affected the

outcome of proceedings. See id. (requiring prejudice to prevail on a due process

challenge); see also Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir.

2009) (the obligation under 8 C.F.R. § 287.3 to notify the alien of his rights does

not attach until the filing of the Notice to Appear).

      The agency therefore did not err in denying De Paz Franco’s applications for

special rule cancellation of removal, 8 C.F.R. § 1240.66(b)(3), and voluntary

departure, 8 U.S.C. § 1229c(b)(1)(B). See 8 U.S.C. § 1101(f)(3).

      PETITION FOR REVIEW DENIED.




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