JOSE JESUS MAGANA-MONTES, AKA Jose Jesus Magana-Montez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JESUS MAGANA-MONTES, AKA
Jose Jesus Magana-Montez,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-73844
Agency No. A090-107-880
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Jose Jesus Magana-Montes, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s removal order. 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).
FILED
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 14-73844
§ 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.
Magana-Montes is removable for an offense related to a controlled
substance, where the abstract of judgment read in conjunction with the complaint
shows his conviction under California Health and Safety Code § 11351 involved
heroin. See 8 U.S.C. § 1227(a)(2)(B)(i) (an alien who has been convicted of a
violation of any law of a state, the United States, or a foreign country relating to a
controlled substance is removable); Cabantac, 736 F.3d at 793-94 (“[W]here, as
here, the abstract of judgment . . . 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 did not violate due process in
determining Magana-Montes is removable. See Padilla-Martinez v. Holder, 770
F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner
must demonstrate both a violation of rights and prejudice.”).
Because the removability determination under 8 U.S.C. § 1227(a)(2)(B)(i) is
dispositive, we need not reach Magana-Montes’ contentions regarding
removability under 8 U.S.C. § 1227(a)(2)(A)(iii).
We lack jurisdiction to consider Magana-Montes’ unexhausted contention
that the abstract of judgment cannot be linked to the complaint because they
describe two different crimes. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

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3 14-73844
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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