                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 29 2015

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



                             FOR THE NINTH CIRCUIT


NINFA RODRIGUEZ,                                 No. 08-71431

               Petitioner,                       Agency No. A073-839-428

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

               Respondent.


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

                                  January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Ninfa Rodriguez, a native and citizen of Mexico, petitions for review of a

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) order of removal. Our jurisdiction is governed by 8

U.S.C. § 1252. We review de novo questions of law, and we review for substantial


          *
             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).
evidence the agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

      We deny Rodriguez’s motion to remand because Samayoa-Martinez v.

Holder, 558 F.3d 897, 901-02 (9th Cir. 2009), forecloses her contention that her

statements to immigration officials at the border were obtained in violation of 8

C.F.R. § 287.3(c).

      Contrary to Rodriguez’s assertion, the agency applied the correct legal

standard and properly distinguished this case from Altamirano v. Gonzales, 427

F.3d 586 (9th Cir. 2005). Substantial evidence supports the agency’s finding that

Rodriguez was removable for alien smuggling because the record contains

Rodriguez’s sworn statement admitting that she knew two of the passengers in the

vehicle were attempting to enter the United States illegally, and that she had been

involved in arranging their entry. See Id. at 595. Moreover, substantial evidence

supports the agency’s decision to credit the sworn statement over Rodriguez’s

internally and externally inconsistent testimony concerning when she first learned

of the smuggling scheme. See Wang v. INS, 352 F.3d 1250, 1258-59 (9th Cir.

2003) (concluding that inconsistencies and implausibilities in testimonial and

documentary evidence went to the heart of applicant’s claim and supported IJ’s

adverse credibility finding).


                                          2                                      08-71431
      Rodriguez’s claim that the agency failed to consider evidence of her medical

condition is belied by the record.

      We lack jurisdiction over Rodriguez’s claim that the IJ denied her the

opportunity to offer sufficient testimony as to the conditions of her interrogation

because Rodriguez failed to exhaust this claim before the BIA. See Tijani v.

Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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