NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ALEJANDRO ALBA-HEREDIA, No. 13-72609
Petitioner, Agency No. A044-795-005
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Juan Alejandro Alba-Heredia, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision pretermitting his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
*
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).
questions of law. Perez-Mejia v. Holder, 663 F.3d 403, 409 (9th Cir. 2011). We
deny in part and dismiss in part the petition for review.
The agency properly concluded that Alba-Heredia’s conviction for
conspiracy to possess with intent to distribute marijuana under 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B)(vii) is an aggravated felony that renders him
removable and ineligible for cancellation of removal. See 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”); 8 U.S.C. § 1229b(a) (cancellation is not
available to an alien who has committed an aggravated felony); Moncrieffe v.
Holder, 133 S.Ct. 1678, 1683 (2013) (a conviction under the Controlled
Substances Act [21 U.S.C. § 801 et seq.] that is punishable by more than one year
imprisonment is an aggravated felony for immigration purposes); 21 U.S.C.
§ 841(b)(1)(B)(vii) (conviction punishable by no less than 5 years imprisonment).
Contrary to Alba-Heredia’s contentions, the intervening decisions in
Moncrieffe, 133 S.Ct. 1678 (addressing whether a state conviction qualifies as an
aggravated felony for immigration purposes), and Negrete-Ramirez v. Holder, 741
F.3d 1047 (9th Cir. 2014) (addressing the type of “admission” needed for purposes
of a waiver of inadmissibility under INA § 212(h)) are inapplicable, where Alba-
Heredia was convicted of a felony under federal statutes and did not seek a
§ 212(h) waiver.
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Alba-Heredia’s contentions that the agency erred and violated due process
by considering a report from the Drug Enforcement Administration and by
relieving the government of its burden of proof on removability are not supported
by the record.
We lack jurisdiction to consider Alba-Heredia’s unexhausted contentions
regarding a request for a continuance to seek representation prior to entering his
pleadings and admissions, and advisals from the IJ regarding the consequences of
conceding the charge of removability. 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.
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