Devon Anthony Bennett, a.k.a Anthony Bennett, a.k.a. Devon Bennett 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NOT FOR PUBLICATION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
DEVON ANTHONY BENNETT, a.k.a
Anthony Bennett, a.k.a. Devon Bennett,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73442
Agency No. A027-873-876
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Devon Anthony Bennett, a native and citizen of Jamaica, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order denying his applications for asylum,
FILED
FEB 13 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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withholding of removal, and relief under the Convention Against Torture (“CAT”).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of
law, and review for substantial evidence the agency’s factual findings. Wakkary v.
Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and dismiss in part
the petition for review.
Bennett’s 2009 conviction for transportation of marijuana under California
Health and Safety Code § 11360(a) renders him removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) as an alien convicted of a law relating to a controlled substance.
See Pagayon v. Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2011) (petitioner’s
“pleading stage” admission that his conviction involved [marijuana] is sufficient to
establish his removability). Bennett’s 2009 conviction is final for immigration
purposes. Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). We need not
address the remaining ground of removability.
Bennett’s contention that the IJ violated due process by conducting
proceedings without his original alien file fails because he has not established
prejudice. Bennett’s assertion that the original file likely contains evidence
refuting the existence of a 2005 entry visa, and proving the existence of an S visa
and various arrangements related to the Federal Bureau of Investigation (“FBI”), is
not supported by any independent evidence of the alleged S visa or the FBI

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arrangements. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error and prejudice to prevail on a due process claim).
We lack jurisdiction to review whether the BIA abused its discretion in
making its particularly serious crime determination, and Bennett has not raised any
colorable constitutional or legal challenges to the determination that his 2000
conviction constitutes a particularly serious crime. 8 U.S.C. § 1252(a)(2)(D);
Pechenkov v. Holder, No. 08-73287, 2012 WL 5995430, at *3-4 (9th Cir. Dec. 3,
2012) (our jurisdiction is limited to colorable constitutional claims and legal
questions).
Substantial evidence supports the agency’s determination that Bennett failed
to establish that it is more likely than not that he would be tortured if he were
returned to Jamaica. See Wakkary, 558 F.3d at 1067-68; Pechenkov, 2012 WL
5995430, at *3-4 (we retain jurisdiction over challenges to a CAT determination
where the agency denies relief on the merits).
We lack jurisdiction to consider Bennett’s remaining contentions because he
failed to raise these issues before the BIA and therefore failed to exhaust his
administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).

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11-73442 4
Bennett’s second motion for a stay of removal pending review is denied.
See Nken v. Holder, 556 U.S. 418, 426 (2009); Leiva-Perez v. Holder, 640 F.3d
962, 970 (9th Cir. 2011) (per curiam).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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