Magana-Montes v. Sessions

698 F. App'x 505

Opinion

MEMORANDUM

Footnotes

•

**

Jose Jesus Magana-Montes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013). We deny in part and dismiss in part the petition for review.

Magana-Montes is removable for an offense related to a controlled substance, where the abstract of judgment read in conjunction with the complaint shows his conviction under California Health and Safety Code § 11351 involved heroin. See 8 U.S.C. § 1227(a)(2)(B)(i) (an alien who has been convicted of a violation of any law of a state, the United States, or a foreign country relating to a controlled substance is removable); Cabantac, 736 F.3d at 793-94 (“[Wjhere, as here, the abstract of judgment ... specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count.”). Accordingly, the agency did not violate due process in determining Magana-Montes is removable. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate both a violation of rights and prejudice.”).

Because the removability determination under 8 U.S.C. § 1227(a)(2)(B)© is dispos-itive, we need not -reach Magana-Montes’ contentions regarding removability under 8 U.S.C. § 1227(a)(2)(A)(iii).

We lack jurisdiction to consider Magana-Montes’ unexhausted contention that the abstract of judgment cannot be linked to the complaint because they describe two different crimes. 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.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.'