Opinion
No. 05-71021.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 2, 2008.
Peter Duong, Law Offices of Alvarez Duong, Oakland, CA, for Petitioner.
Rhonda M. Dent, Esquire, U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-858-508.
Before: ALARCÓN, LEAVY, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Vinipratap Singh Hehr, a native and citizen of India, petitions for review of the Board of Immigration Appeals' order summarily affirming of an appeal from an immigration judge's ("IJ") decision denying his motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion a denial of a motion to reopen, Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 (9th Cir. 2003), and we review de novo claims of constitutional violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the petition for review.
The IJ did not abuse her discretion by denying Hehr's motion because Hehr failed to show prima facie eligibility for asylum. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003) ("[A] motion to reopen will not be granted unless the respondent establishes a prima facie case of eligibility for the underlying relief sought.").
Hehr contends the IJ violated due process by not informing him of his right to apply for asylum in his own right. Hehr failed to show a due process violation by the IJ because the IJ asked if he had a fear of persecution and he answered in the negative. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due process claim).