                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ECTOR TORRES-REVILLA, AKA Jesse                 No.    14-71993
Torres, AKA Hector Torres Revilla, AKA
Hector Torres-Tevilla,                          Agency No. A096-027-337

                Petitioner,
                                                MEMORANDUM*
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                          Submitted February 13, 2018**

Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Ector Torres-Revilla, a native and citizen of Mexico, petitions for review of

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

immigration judge’s (“IJ”) decision denying voluntary departure and ordering him



      *
             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).
removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a continuance and review de novo constitutional claims and

questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny

in part and dismiss in part the petition for review.

      United States v. Martinez-Lopez forecloses Torres-Revilla’s contention that

California Health & Safety Code (“CHSC”) § 11352(a) is not divisible. 864 F.3d

1034, 1044-45 (9th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 523 (2017)

(appropriate to apply the modified categorical approach to CHSC § 11352(a),

because the statute “is divisible with regard to both its controlled substance

requirement and its actus reus requirement”). Accordingly, the agency did not err

in its determination that Torres-Revilla was convicted of an aggravated felony, and

that he was therefore ineligible for the relief he sought. See 8 U.S.C.

§§ 1229b(b)(1)(C), 1229c(b)(1)(C), 1225(a)(2).

      In light of our disposition, we do not reach Torres-Revilla’s contention that

he exhausted his challenge to the IJ’s determination that his conviction under

CHSC § 11352(a) was a controlled substance offense. See Simeonov v. Ashcroft,

371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to reach

non-dispositive issues).

      The agency did not err or abuse its discretion in denying for lack of good

cause Torres-Revilla’s motion for a continuance to pursue post-conviction relief.


                                           2                                     14-71993
See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (outlining factors for the

reviewing court to consider when reviewing the agency’s denial of a continuance).

Accordingly, to the extent Torres-Revilla contends the agency violated due process

in denying his request for a continuance, this contention fails. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to

prevail on a due process claim).

      We lack jurisdiction to consider Torres-Revilla’s unexhausted contention

that he meets the requirements of Lujan Armendariz v. INS, 222 F.3d 728 (9th Cir.

2000) and the Federal First Offender Act, where he did not raise this contention in

his brief to the BIA. See Alvarado v. Holder, 759 F.3d 1121, 1126 n.4 (9th Cir.

2014) (“‘when a petitioner does file a brief,’ he will ‘be deemed to have exhausted

only those issues he raised and argued in his brief before the BIA’” (internal

citation omitted) (emphasis in original)).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                             3                                14-71993
