                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          MAR 15 2017

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

FRYDEL RIQUELME SAMAYOA,                         No.   15-72298

               Petitioner,                       Agency No. A026-989-142

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

               Respondent.


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

                             Submitted March 8, 2017**

Before:        LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

      Frydel Riquelme Samayoa, a native and citizen of Guatemala, petitions for

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

from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by

8 U.S.C. § 1252. We review de novo questions of law and constitutional claims.

      *
             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).
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part

and dismiss in part the petition for review.

      The BIA correctly determined that Samayoa is statutorily ineligible for

adjustment of status because his controlled substance violation renders him

inadmissible. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1255(i)(2)(A).

      The BIA also correctly determined that Samayoa is statutorily ineligible to

apply for relief under former 8 U.S.C. § 1182(c) because he was not admitted as a

lawful permanent resident of the United States. See 8 U.S.C. § 1182(c) (repealed

1996) (relief available to “[a]liens lawfully admitted for permanent residence”);

Matter of Ponce De Leon-Ruiz, 21 I. & N. Dec. 154, 157 (BIA 1996) (noting

eligibility under former 8 U.S.C. § 1182(c) requires an alien to be lawfully

admitted for permanent residence). Samayoa’s contention that former 8 U.S.C.

§ 1182(c) violates equal protection because it is not available to aliens not lawfully

admitted for permanent residence is unavailing. Cf. Taniguchi v. Schultz, 303 F.3d

950, 957-58 (9th Cir. 2002) (although 8 U.S.C. § 1182(h) provides “a waiver of

deportation to non-[lawful permanent resident] aggravated felons while denying

such a waiver to [lawful permanent resident] aggravated felons,” the distinction

does not violate equal protection).




                                           2                                    15-72298
      We lack jurisdiction to consider Samayoa’s unexhausted contention that the

IJ erred in determining that Samayoa failed to establish a fear of future persecution,

and he does not challenge the BIA’s determination that he waived this contention.

See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks

jurisdiction to consider legal claims not presented in an alien’s administrative

proceedings before the BIA).

      PETITION FOR REVIEW IS DENIED in part; DISMISSED in part.




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