Jesus Zuniga-Flores v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
RB/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS ZUNIGA-FLORES,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
Nos. 06-72309
06-73639
Agency No. A092-169-842
MEMORANDUM *
On Petitions for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
In these consolidated petitions for review, Jesus Zuniga-Flores, a native and
citizen of Mexico, petitions for review of the Board of Immigration Appeals’
(“BIA”) order dismissing his appeal from an immigration judge’s order finding
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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that he knowingly participated in alien smuggling in violation of 8 U.S.C. §
1182(a)6)(E)(i), as well as an order denying his motion to reconsider. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law
and due process claims, for abuse of discretion the denial of a motion to reconsider,
and for substantial 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 in No. 06-72309, and deny the petition for review in
No. 06-73639.
Zuniga-Flores’ due process rights were not violated by the admission of his
Form I-213 (Record of Deportable/Inadmissible Alien) because the form was
probative, and its admission was not fundamentally unfair. See Espinoza v. INS,
45 F.3d 308, 310-11 (9th Cir.1995) (noting that "[t]he sole test for admission of
evidence [in a deportation proceeding] is whether the evidence is probative and its
admission is fundamentally fair," and rejecting argument that a Form I-213 is
inadmissible as hearsay). Moreover, the IJ properly denied Zuniga-Flores’ request
to cross-examine the preparer of his Form I-213, because Zuniga-Flores did not
produce probative evidence that cast doubt on the document’s reliability. Id.
According to the Form I-213, Zuniga-Flores drove the car to the border and
acknowledged to border agents that he knew the alien passenger was

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undocumented. Zuniga-Flores therefore “provided some form of affirmative
assistance to the illegally entering alien.” See Altamirano v. Gonzales, 427 F.3d
586, 592 (9th Cir. 2005).
We lack jurisdiction to review the agency’s denial of cancellation of removal
as a matter of discretion. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th
Cir. 2005) (noting 8 U.S.C. § 1252(a)(2)(B) precludes judicial review of
discretionary decisions denying cancellation of removal).
The BIA was within its discretion in denying Zuniga-Flores’ motion to
reconsider because the motion failed to identify any error of fact or law in the
BIA’s prior decision. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272
F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc).
Zuniga-Flores’ remaining contentions are unpersuasive.
IN 06-72309, PETITION FOR REVIEW DENIED in part; DISMISSED
in part.
IN 06-73639, PETITION FOR REVIEW DENIED.

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