NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRYDEL RIQUELME SAMAYOA, No. 15-72298
Petitioner, Agency No. A026-989-142
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Frydel Riquelme Samayoa, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by
8 U.S.C. § 1252. We review de novo questions of law and constitutional claims.
*
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).
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
The BIA correctly determined that Samayoa is statutorily ineligible for
adjustment of status because his controlled substance violation renders him
inadmissible. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1255(i)(2)(A).
The BIA also correctly determined that Samayoa is statutorily ineligible to
apply for relief under former 8 U.S.C. § 1182(c) because he was not admitted as a
lawful permanent resident of the United States. See 8 U.S.C. § 1182(c) (repealed
1996) (relief available to “[a]liens lawfully admitted for permanent residence”);
Matter of Ponce De Leon-Ruiz, 21 I. & N. Dec. 154, 157 (BIA 1996) (noting
eligibility under former 8 U.S.C. § 1182(c) requires an alien to be lawfully
admitted for permanent residence). Samayoa’s contention that former 8 U.S.C.
§ 1182(c) violates equal protection because it is not available to aliens not lawfully
admitted for permanent residence is unavailing. Cf. Taniguchi v. Schultz, 303 F.3d
950, 957-58 (9th Cir. 2002) (although 8 U.S.C. § 1182(h) provides “a waiver of
deportation to non-[lawful permanent resident] aggravated felons while denying
such a waiver to [lawful permanent resident] aggravated felons,” the distinction
does not violate equal protection).
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We lack jurisdiction to consider Samayoa’s unexhausted contention that the
IJ erred in determining that Samayoa failed to establish a fear of future persecution,
and he does not challenge the BIA’s determination that he waived this contention.
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 BIA).
PETITION FOR REVIEW IS DENIED in part; DISMISSED in part.
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