FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR ENRIQUE MORAN, No. 11-71232
Petitioner, Agency No. A095-714-685
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
Judge.
Petitioner Victor Enrique Moran petitions for review of a Board of
Immigration Appeals ("BIA") order dismissing his appeal. We have jurisdiction
under 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward F. Shea, Senior United States District Judge
for the Eastern District of Washington, sitting by designation.
1. On review, Petitioner argues that the immigration judge’s ("IJ")
determination that Petitioner was removable lacks sufficient support in the
administrative record. Petitioner did not make that argument in his brief to the
BIA, however. Because Petitioner failed to exhaust the argument, we lack
jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).
2. To the extent that Petitioner suggested at oral argument that he was
eligible for Federal First Offender Act treatment, that issue is waived because it
was neither exhausted at the agency level nor argued in the opening brief. See id.;
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).
3. Although the IJ’s failure to advise Petitioner of his potential eligibility
for pre-hearing voluntary departure was error, the error was harmless because
Petitioner’s conviction for possession of cocaine makes him permanently
inadmissible. Petitioner therefore cannot show that the IJ’s error resulted in
prejudice. See United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir. 1986).
DISMISSED IN PART; DENIED IN PART.
2