* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60553

Summary Calendar

MARIA DEL ROSARIO ALMENDAREZ

Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A79 556 893

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Maria del Rosario Almendarez, a native and citizen of Mexico, seeks

review of an order of the Board of Immigration Appeals (BIA) accepting the

finding of an immigration judge (IJ) that she is statutorily inadmissible under

8 U.S.C. § 1182(a)(6)(C)(ii) because she made a false claim of U.S. citizenship by

using a false United States passport to enter the United States in 1999. “When,

as here, the BIA affirms the immigration judge and relies on the reasons set

forth in the immigration judge’s decision, this court reviews the decision of the

United States Court of Appeals

Fifth Circuit

F I L E D

June 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-60553

2

immigration judge as well as the decision of the BIA.” Ahmed v. Gonzales, 447

F.3d 433, 437 (5th Cir. 2006). We review the BIA’s factual findings under the

substantial evidence standard, which requires that the decision be affirmed

unless the “evidence compels a contrary conclusion.” Carbajal-Gonzalez v. INS,

78 F.3d 194, 197 (5th Cir. 1996).

Almendarez argues that the Government failed to meet its burden under

8 C.F.R. § 1240.8(a) to establish by “clear and convincing” evidence that she was

deportable. However, the Respondent correctly observes that Almendarez had

the burden of proof under 8 U.S.C. § 1229a(c)(2). In addition, Almendarez had

the burden under § 1229a(c)(2)(A) of specifically establishing that she was not

inadmissible under § 1182(a)(6)(C)(ii). 

Almendarez contends that the IJ should not have relied upon the

statement she signed at the conclusion of a January 2005 interview with a

United States Citizenship and Immigration Services (USCIS) officer because the

statement was inaccurate due to mistranslation during the interview and

because the statement was not read to her in Spanish before she signed it.

Almendarez also argues that the IJ mischaracterized her testimony as vague

when in fact she demonstrated an understanding of the difference between a

passport and a green card. However, the IJ credited the testimony of the USCIS

officer regarding the January 2005 interview, and this testimony, together with

the sworn statement, constituted substantial evidence that Almendarez used a

false United States passport to enter the United States in 1999. See Chun v.

INS, 40 F.3d 76, 78 (5th Cir. 1994). In addition, substantial evidence also

supports the IJ’s assessment of Almendarez’s testimony. See id. In any case,

the record does not compel “a contrary conclusion,” especially given the great

deference we must give to the IJ’s credibility determinations. Carbajal-Gonzalez

v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Accordingly, we deny the petition for

review with respect to this claim.
No. 07-60553

3

Almendarez also contends that the IJ’s ruling that she was statutorily

inadmissible should be reversed because the IJ’s reliance on “sticky notes”in the

record was improper. The record shows that Almendarez failed to raise her

argument regarding the “sticky notes” before the BIA. Accordingly, we dismiss

the petition for review in part for lack of jurisdiction over this claim. See

8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).

Almendarez also contends that the IJ and BIA violated her due process

rights in ordering her removed based on a sworn statement that was elicited

without a qualified and accurate translator. Due process claims are not

generally subjectto § 1252(d)(1)’s exhaustion requirement, but the jurisdictional

bar does apply to claims of “procedural errors that are correctable by the BIA.”

Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Although her claim is couched

in due process terms, Almendarez complains of a procedural error correctable by

the BIA. See id. at 137. The record shows that Almendarez did not raise her

procedural due process claim before the BIA. Accordingly, we dismiss the

petition for review in part for lack of jurisdiction over this claim.

DENIED IN PART; DISMISSED IN PART.