                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 12 2012

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



                             FOR THE NINTH CIRCUIT


XIAODONG WANG,                                  No. 08-72733

              Petitioner,                       Agency No. A077-186-213

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

              Respondent.


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

                            Submitted December 7, 2012**
                              San Francisco, California

Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.

       Xiaodong Wang (“Wang”) seeks review of the Board of Immigration Appeals’

(“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal. For the

following reasons, we deny the petition.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Wang’s third husband, Alex Cheung, admitted to marriage fraud in a sworn

affidavit and withdrew his I-130 petition for an immediate relative visa on her behalf.

However, Wang contends Cheung did not provide written notice of the petition’s

withdrawal as required by 8 C.F.R. § 205.1(a)(3)(i)(A). She argues that it was

improper for the agency to place her in removal proceedings when a marriage fraud

charge could not be legally sustained and that her entire removal proceeding should

be terminated as a result.

      Wang’s argument fails because it is irrelevant to her removal as charged and

adjudicated. Although marriage fraud was originally charged as a ground for removal

in the initial notice to appear (“NTA”), the agency later amended the NTA to

withdraw that ground without prejudice, and, in its place, charged Wang with being

removable as an alien present in the United States in violation of the law, 8 U.S.C. §

1227(a)(1)(B). Wang did not challenge her removability under § 1227(a)(1)(B) before

the BIA, nor does she contest this ground for removability before this court. See

Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (failure to exhaust

administrative remedies leaves appellate court without jurisdiction to address the

issue). As the IJ correctly noted, because Wang is removable on a charge unrelated

to the marriage fraud, she cannot demonstrate prejudice from an alleged procedural

failure regarding the underlying I-130 visa petition, and there is no basis to terminate


                                           2
her removal proceedings. See Matter of Santos, 19 I & N Dec. 105, 107-08 (BIA

1984) (alien must demonstrate prejudice by violation of procedural rule or regulation

before proceeding will be invalidated).

      Because Wang waived any challenge to her removability, the only remaining

issue is whether the IJ improperly denied any application for relief from removal. But

Wang’s only submission was the motion to terminate removal proceedings discussed

above. Earlier in the proceedings Wang attempted to renew her application for

adjustment of status, but she relied on her previously-denied 1998 application for

adjustment of status and the withdrawn I-130 petition by Cheung.1 When the

government pointed out that there was no visa petition to support a renewed

application, the IJ informed Wang’s counsel that Wang would need to submit—prior

to the deadline—evidence of an approved petition and immediately-available visa (see

8 C.F.R. § 1245.2), which Wang failed to do.

      Finally, Wang alleges the BIA deprived her of due process because, in addition

to expressly adopting and affirming the decision of the IJ, it also offered additional



      1
         To the extent Wang contests the agency’s determination that the petition was
in fact withdrawn, the BIA correctly noted that, as a beneficiary of the petition, she
lacks standing to contest this decision. Matter of Sano, 19 I &N Dec. 299, 300 (BIA
1985) (only visa petitioner can appeal denial of visa petition). The record contains no
suggestion that petitioner Cheung disagreed with or contested the agency’s
determination that he had withdrawn the petition.
                                          3
reasons to support the removal and denial of her motion to terminate proceedings.

Yet, this did not deprive Wang of due process, because she is free in this court to

challenge the reasoning of both the BIA and the IJ. See Husyev v. Mukasey, 528 F.3d

1172, 1177 (9th Cir. 2008) (when BIA cites Burbano and adopts opinion of IJ, but

also offers reasons of its own, this court reviews the reasoning of both decisions).

Wang offers no legal justification to overturn the reasoning of either.

      PETITION DENIED.




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