                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 20 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

VICTOR ENRIQUE MORAN,                            No. 11-71232

              Petitioner,                        Agency No. A095-714-685

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

              Respondent.


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

                      Argued and Submitted February 9, 2015
                               Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and SHEA,** Senior District
Judge.

       Petitioner Victor Enrique Moran petitions for review of a Board of

Immigration Appeals ("BIA") order dismissing his appeal. We have jurisdiction

under 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward F. Shea, Senior United States District Judge
for the Eastern District of Washington, sitting by designation.
      1.     On review, Petitioner argues that the immigration judge’s ("IJ")

determination that Petitioner was removable lacks sufficient support in the

administrative record. Petitioner did not make that argument in his brief to the

BIA, however. Because Petitioner failed to exhaust the argument, we lack

jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).

      2.     To the extent that Petitioner suggested at oral argument that he was

eligible for Federal First Offender Act treatment, that issue is waived because it

was neither exhausted at the agency level nor argued in the opening brief. See id.;

Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).

      3.     Although the IJ’s failure to advise Petitioner of his potential eligibility

for pre-hearing voluntary departure was error, the error was harmless because

Petitioner’s conviction for possession of cocaine makes him permanently

inadmissible. Petitioner therefore cannot show that the IJ’s error resulted in

prejudice. See United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir. 1986).

      DISMISSED IN PART; DENIED IN PART.




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