FILED
NOT FOR PUBLICATION MAY 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN ORTEGA-NUNEZ, AKA No. 12-70169
Benjamin Nunez Ortega, AKA Benjamin
Ortega, Agency No. A026-550-695
Petitioner,
MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Benjamin Ortega-Nunez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for cancellation of removal.
*
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).
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.
Under the modified categorical approach, the agency correctly concluded
that Ortega-Nunez’ convictions under California Vehicle Code § 10851(a) were
aggravated felony theft offenses under 8 U.S.C. § 1101(a)(43)(G), where the
record of conviction established that Ortega-Nunez’ was convicted as a principal
and that the terms of imprisonment imposed were at least one year. See Duenas-
Alvarez v. Holder, 733 F.3d 812, 814-815 (9th Cir. 2013) (holding that we “apply
the modified categorical approach to determine whether Petitioner was convicted
as a principal, instead of as an accessory” under California Vehicle Code
§ 10851(a)); Cabantac, 736 F.3d at 793-94 (“[W]here, as here, the abstract of
judgment or minute order 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 correctly concluded that Ortega-Nunez was
ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).
To the extent Ortega-Nunez contends that his conviction is not an
aggravated felony because he did not commit a permanent theft, we lack
jurisdiction over that unexhausted contention. See Tijani v. Holder, 628 F.3d 1071,
2 12-70169
1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not
presented in an alien’s administrative proceedings before the agency).
We do not reach Ortega-Nunez’ contention that his convictions do not
constitute crimes involving moral turpitude because the agency never concluded
that his convictions were crimes involving moral turpitude. Simeonov v. Ashcroft,
371 F.3d 532, 538 (9th Cir. 2004) (“As a general rule courts and agencies are not
required to make findings on issues the decision of which is unnecessary to the
results they reach.” (citation and quotation marks omitted)).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 12-70169