                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         FEB 15 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

AGUSTIN MARTINEZ-VILLA,                           No. 10-73407

               Petitioner,                        Agency No. A070-710-730

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Agustin Martinez-Villa, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his applications for cancellation of

removal, asylum, withholding of removal, and relief under the Convention Against


          *
             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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence factual findings, Zehatye v. Gonzales, 453 F.3d 1182,

1184-85 (9th Cir. 2006), and de novo questions of law, Brezilien v. Holder, 569

F.3d 403, 411 (9th Cir. 2009). We dismiss in part and deny in part the petition for

review.

      Because Martinez-Villa did not argue to the BIA that his conviction for

possession for sale of methamphetamine did not constitute an aggravated felony,

we lack jurisdiction to consider this new challenge. See Abebe v. Mukasey, 554

F.3d 1203, 1208 (9th Cir. 2009) (claim raised in notice of appeal but not pursued in

the later-filed brief to the BIA is not properly exhausted). Accordingly his

cancellation of removal and asylum claims fail.

      We also lack jurisdiction to consider Martinez-Villa’s new claim that the

agency applied the wrong legal standard when it determined his drug trafficking

conviction presumptively constituted a particularly serious crime because he failed

to raise this challenge to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004). In addition, the record indicates that he conceded his conviction is a

drug trafficking crime that triggers the presumption it is a particularly serious

crime. See Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008) (“[P]ossession

of a controlled substance with the intent to sell contains a trafficking element and is


                                           2                                        10-73407
an aggravated felony.”); Miguel-Miguel v. Gonzales, 500 F.3d 941, 945-50 (9th

Cir. 2007) (aggravated felonies involving unlawful trafficking in controlled

substances presumptively constitute particularly serious crimes). Accordingly, he

is statutorily ineligible for withholding of removal and withholding of removal

under CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2).

      To the extent Martinez-Villa contends the BIA abused its discretion in

applying the presumption related to drug trafficking offenses, his challenge does

not raise a colorable question of law over which this court has jurisdiction. See 8

U.S.C. §§ 1252(a)(2)(C) and (D); see also Pechenkov v. Holder, No. 08-73287,

2012 WL 5995430 (9th Cir. Dec. 3, 2012).

      Finally, substantial evidence supports the BIA’s denial of deferral of

removal under CAT because Martinez-Villa did not establish it is more likely than

not that he would be tortured by the Mexican government or with its consent or

acquiescence. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




                                          3                                    10-73407
