NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN DUARTE-LEYVA, No. 14-71761
Petitioner, Agency No. A086-841-964
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Ivan Duarte-Leyva, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision finding him removable and denying his
application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review de novo questions of law. See Madrigal-Barcenas v. Lynch,
797 F.3d 643, 643-45 (9th Cir. 2015). We deny in part and dismiss in part the
petition for review.
The BIA did not err in determining that Duarte-Leyva failed to establish that
his conviction under California Health & Safety Code § 11350(a) is not a
controlled substance violation that renders him ineligible for cancellation of
removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C); Pereida v.
Wilkinson, 141 S. Ct. 754, 758, 766 (2021) (an applicant for relief from removal
cannot establish eligibility where a conviction record is inconclusive as to which
elements of a divisible statute formed the offense); Lazo v. Wilkinson, 989 F.3d
705, 714 (9th Cir. 2021) (holding California Health & Safety Code § 11350 is
divisible with regard to substance).
We lack jurisdiction to consider Duarte-Leyva’s fear of harm in Mexico,
which he raises for the first time in his opening brief. See Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not
presented to the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 14-71761