Ector Torres-Revilla v. Jefferson Sessions , 713 F. App'x 614 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ECTOR TORRES-REVILLA, AKA Jesse No. 14-71993
Torres, AKA Hector Torres Revilla, AKA
Hector Torres-Tevilla, Agency No. A096-027-337
Petitioner,
MEMORANDUM*
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Ector Torres-Revilla, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying voluntary departure and ordering him
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a continuance and review de novo constitutional claims and
questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny
in part and dismiss in part the petition for review.
United States v. Martinez-Lopez forecloses Torres-Revilla’s contention that
California Health & Safety Code (“CHSC”) § 11352(a) is not divisible. 864 F.3d
1034, 1044-45 (9th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 523 (2017)
(appropriate to apply the modified categorical approach to CHSC § 11352(a),
because the statute “is divisible with regard to both its controlled substance
requirement and its actus reus requirement”). Accordingly, the agency did not err
in its determination that Torres-Revilla was convicted of an aggravated felony, and
that he was therefore ineligible for the relief he sought. See 8 U.S.C.
§§ 1229b(b)(1)(C), 1229c(b)(1)(C), 1225(a)(2).
In light of our disposition, we do not reach Torres-Revilla’s contention that
he exhausted his challenge to the IJ’s determination that his conviction under
CHSC § 11352(a) was a controlled substance offense. See Simeonov v. Ashcroft,
371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to reach
non-dispositive issues).
The agency did not err or abuse its discretion in denying for lack of good
cause Torres-Revilla’s motion for a continuance to pursue post-conviction relief.
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See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (outlining factors for the
reviewing court to consider when reviewing the agency’s denial of a continuance).
Accordingly, to the extent Torres-Revilla contends the agency violated due process
in denying his request for a continuance, this contention fails. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to
prevail on a due process claim).
We lack jurisdiction to consider Torres-Revilla’s unexhausted contention
that he meets the requirements of Lujan Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000) and the Federal First Offender Act, where he did not raise this contention in
his brief to the BIA. See Alvarado v. Holder, 759 F.3d 1121, 1126 n.4 (9th Cir.
2014) (“‘when a petitioner does file a brief,’ he will ‘be deemed to have exhausted
only those issues he raised and argued in his brief before the BIA’” (internal
citation omitted) (emphasis in original)).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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