Ninfa Rodriguez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NINFA RODRIGUEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-71431
Agency No. A073-839-428
MEMORANDUM*
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
FILED
JAN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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).
08-71431 2

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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.
08-71431 3

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