FILED
NOT FOR PUBLICATION JAN 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOAQUIN GARCIA ROSAS, No. 11-72724
Petitioner, Agency No. A097-347-139
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Joaquin Garcia Rosas, a native and citizen of Mexico, petitions pro se for
review of an order of the Board of Immigration Appeals dismissing his appeal
from the removal order of an immigration judge (“IJ”). We have jurisdiction under
8 U.S.C. § 1252. We review de novo due process claims and questions of law,
*
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).
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), and review for abuse of
discretion the denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243,
1246 (9th Cir. 2008) (per curiam). We deny the petition for review.
The agency correctly concluded that Garcia Rosas’s conviction for
possession of marijuana for sale in violation of section 11359 of the California
Health and Safety Code constitutes a conviction for an aggravated felony under
8 U.S.C. § 1101(a)(43)(B). See Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.
2008) (“[A] state drug crime is an aggravated felony if it would be punishable as a
felony under the federal drug laws”). The agency also correctly concluded that
Garcia Rosas’s aggravated-felony conviction rendered him statutorily ineligible for
cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(a)(3)
(disqualifying aggravated felons from cancellation of removal), 1229c(b)(1)(C)
(requiring a showing of good moral character to qualify for voluntary departure),
1101(f)(8) (precluding aggravated felons from demonstrating good moral
character). The validity of this conviction is not properly before us. See
Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner
may not collaterally attack his state court conviction on a petition for review of a
BIA decision.”).
2 11-72724
Because Garcia Rosas is statutorily ineligible for the requested relief, he
cannot demonstrate that the IJ erred or violated due process by pretermitting his
applications without first conducting a merits hearing. See Simeonov, 371 F.3d
at 538.
Garcia Rosas also has failed to demonstrate that the IJ abused his discretion
or violated due process by not continuing the proceedings in order to afford Garcia
Rosas an opportunity to seek post-conviction relief, because post-conviction relief
remained speculative at the time of the hearing. See Sandoval-Luna, 526 F.3d
at 1247 (identifying no abuse of discretion or due process violation from an IJ’s
refusal to continue proceedings when no relief was then immediately available).
PETITION FOR REVIEW DENIED.
3 11-72724