Duarte
Duarte v. Holder
Opinion
Opinion
MEMORANDUM
Maria Gutierrez-Duarte petitions for review of the Board of Immigration Appeals’s denial of her request to remand. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition for review.
Duarte argues that the BIA violated her right to due process by not considering whether her cousin was a “daughter” for purposes of an 8 U.S.C. § 1182 (d)(ll) waiver. The record is to the contrary. The BIA rejected Duarte’s remand request because she failed to establish two elements necessary for remand — that she was prima facie eligible for the waiver and that her new evidence was previously unavailable. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063-64 (9th Cir.2008); 8 C.F.R. § 1003.2 (c) (setting forth the requirements of a motion to remand/reopen). The BIA held that Duarte was not eligible for the waiver because the plain statutory language of § 8 U.S.C. § 1182 (d)(ll) does not include cousins among the list of qualifying relatives. The BIA clearly considered the claim and no due process violation occurred. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring both error and prejudice for a due process violation).