                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 31 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EDGAR ZARATE, a.k.a. Edgar Argenis               No. 08-72383
Zarate,
                                                 Agency No. A096-358-033
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted August 10, 2010 **

Before:        LEAVY, HAWKINS, and IKUTA, Circuit Judges.

       Edgar Zarate, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s (“IJ”) order denying his motion to terminate proceedings. We review de




          *
             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).
novo claims of constitutional violations, Colmenar v. INS, 210 F.3d 967, 970 (9th

Cir. 2000), and we dismiss in part and deny in part the petition for review.

      In his opening brief, Zarate contends that his conviction under California

Health and Safety Code § 11352(a) does not fall under section 102 of the

Controlled Substances Act, and therefore does not make him removable under 8

U.S.C. § 1227(a)(2)(B)(i). We lack jurisdiction, however, to review this

contention because Zarate did not exhaust it before the agency. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      We reject Zarate’s contention that his due process rights were violated when

the IJ had an off-the-record discussion as to whether his conviction constitutes an

aggravated felony because the IJ did not find him removable under that ground.

See Colmenar, 210 F.3d at 972 (requiring a showing prejudice to prevail in a due

process claim).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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