FILED
                              NOT FOR PUBLICATION                            DEC 07 2009

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 JOSE LIDIO CABRAL-CABRAL,                        No. 05-75182

               Petitioner,                        Agency No. A090-176-653

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Jose Lidio Cabral-Cabral, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order summarily affirming an

immigration judge’s (“IJ”) decision denying his application for a § 212(h) waiver



          *
             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).

IH/Research
of inadmissability. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

de novo claims of due process violations in immigration proceedings, Sanchez-

Cruz v. INS, 

, 779 (9th Cir. 2001), and we deny in part and dismiss in

part the petition for review.

         Cabral-Cabral’s contention concerning the retroactive application of 8

C.F.R. § 212.7(d) is foreclosed by Mejia v. Gonzales, 

, 997-99 (9th

Cir. 2007). Cabral-Cabral’s contention that his conviction under California Penal

Code §288(a) is not a crime of violence is also foreclosed. 

.

         We lack jurisdiction to review the IJ’s discretionary denial of Cabral-

Cabral’s application for a waiver of inadmissibility under § 212(h) of the

Immigration and Nationality Act. See 8 U.S.C. § 1252(a)(2)(B)(i); 

. Cabral-Cabral’s contention that the IJ violated his due process rights by

disregarding his evidence of hardship to his wife and misapplying the law to the

facts of his case is not supported by the record and does not amount to a colorable

due process claim. See Martinez-Rosas v. Gonzales, 

, 930 (9th Cir.

2005).

         Cabral-Cabral’s due process rights were not violated by the admission of his

probation officer’s report because the report was probative and its admission was

not fundamentally unfair. See Espinoza v. INS, 

, 310-11 (9th Cir.


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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”); Trias-Hernandez v. INS, 

, 369 (9th Cir. 1975)

(“Hearsay is admissible in administrative proceedings, which need not strictly

follow conventional evidence rules.”).

        PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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