Opinion
No. 12-70290
12-15-2014
JAVIER VILLEGAS, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A095-757-923 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Javier Villegas, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision pretermitting his applications for cancellation of removal and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Rendon v. Mukasey, 520 F.3d 967, 971 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.
The BIA correctly determined that Villegas' conviction under California Health and Safety Code § 11351 for possession of cocaine for sale constitutes a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B). See id. at 976 ("[P]ossession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony."); United States v. Gomez-Hernandez, 680 F.3d 1171, 1174-75 (9th Cir. 2012) (charging document and transcript of plea colloquy may be used to determine whether offense is a removable one). The BIA also correctly concluded that Villegas' conviction renders him ineligible for cancellation of removal, see 8 U.S.C. § 1229b(b)(1)(C), and pre- and post-hearing voluntary departure, see 8 U.S.C. § 1229c(a)-(b); 8 C.F.R. § 1240.26 (b)(1)(i)(E), (c)(1)(iii). Accordingly, Villegas' due process contention fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on due process claim).
We lack jurisdiction to consider Villegas' contention regarding the expungement of his conviction because he failed to exhaust this claim before the agency. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) ("We lack jurisdiction to review legal claims not presented in an alien's administrative proceedings before the BIA.").
PETITION FOR REVIEW DENIED in part; DISMISSED in part.