Jorge Cervantes-Herrera v. Loretta E. Lynch , 621 F. App'x 381 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JORGE CERVANTES-HERRERA, No. 13-74133
Petitioner, Agency No. A077-330-851
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE and WATFORD, Circuit Judges.
Jorge Cervantes-Herrera, 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 (“IJ”) decision finding him removable and
pretermitting his application for cancellation of removal. Our jurisdiction is
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
governed by 8 U.S.C. § 1252. We review de novo questions of law and
constitutional claims. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We
deny in part and dismiss in part the petition for review.
Cervantes-Herrera’s contention that he was not convicted of an aggravated
felony is unavailing because the agency did not find that he had been convicted of
an aggravated felony.
Cervantes-Herrera waived any challenge to the BIA’s determinations that he
was removable for having committed an offense relating to a controlled substance
under 8 U.S.C. § 1227(a)(2)(B)(i), and that he was ineligible for cancellation of
removal because his conviction for an offense relating to a controlled substance
terminated his accrual of the requisite continuous physical presence. See Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a
contention by failing to raise it in the opening brief).
To the extent Cervantes-Herrera contends that the agency violated due
process by denying him a further continuance, that contention is not supported by
the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a
due process challenge, an alien must show error and prejudice).
Cervantes-Herrera failed to exhaust his contentions that he did not
understand the immigration consequences of his guilty plea, that his former
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attorneys provided ineffective assistance of counsel, and that the IJ erred by not
permitting him to post bond. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (the court lacks jurisdiction to consider legal claims not presented in an
alien’s administrative proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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