Edgar Zarate, a.k.a. Edgar Argenis Zarate v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ZARATE, a.k.a. Edgar Argenis
Zarate,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72383
Agency No. A096-358-033
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 10, 2010**
Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges.
Edgar Zarate, 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”) order denying his motion to terminate proceedings. We review de
FILED
AUG 31 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-72383 2
novo claims of constitutional violations, Colmenar v. INS, 210 F.3d 967, 970 (9th
Cir. 2000), and we dismiss in part and deny in part the petition for review.
In his opening brief, Zarate contends that his conviction under California
Health and Safety Code § 11352(a) does not fall under section 102 of the
Controlled Substances Act, and therefore does not make him removable under 8
U.S.C. § 1227(a)(2)(B)(i). We lack jurisdiction, however, to review this
contention because Zarate did not exhaust it before the agency. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
We reject Zarate’s contention that his due process rights were violated when
the IJ had an off-the-record discussion as to whether his conviction constitutes an
aggravated felony because the IJ did not find him removable under that ground.
See Colmenar, 210 F.3d at 972 (requiring a showing prejudice to prevail in a due
process claim).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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