Jose Huerta-Pena v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HUERTA-PENA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-72195
Agency No. A038-839-434
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Jose Huerta-Pena, a native and citizen of Mexico, petitions pro se 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.
FILED
JAN 16 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

§ 1252. We review de novo questions of law. Ramirez-Villalpando v. Holder, 645
F.3d 1035, 1038 (9th Cir. 2011). We deny in part and dismiss in part the petition
for review.
The agency correctly determined that Huerta-Pena is ineligible for
cancellation of removal because his conviction under California Penal Code
§ 487(a) constitutes an aggravated felony. See 8 U.S.C. §§ 1229b(a)(3),
1101(a)(43)(G) (a theft offense for which the term of imprisonment is at least one
year is an aggravated felony); see also Ramirez-Villalpando, 645 F.3d at 1039
(modified categorical approach required to determine whether conviction under
California Penal Code § 487(a) is an aggravated felony); United States v.
Strickland, 601 F.3d 963, 968-69 (9th Cir. 2010) (en banc) (docket sheet may be
considered when applying the modified categorical approach).
We lack jurisdiction to consider Huerta-Pena’s contention that the agency
should not have considered the felony complaint because he did not raise that issue
before the agency and therefore failed to exhaust his administrative remedies. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction
to review contentions not raised before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
11-72195 2

-- 2 of 2 --