                                                                            FILED
                              NOT FOR PUBLICATION                             OCT 6 2011

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




                              FOR THE NINTH CIRCUIT



VICTOR HIDALGO-JARQUIN, a.k.a.                    No. 09-72043
Victor Manuel Hidalgo-Jaquin,
                                                  Agency No. A040-199-424
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Victor Hidalgo-Jarquin, a native and citizen of Nicaragua, petitions pro se

for review of the Board of Immigration Appeals’ order summarily affirming an

immigration judge’s removal order. Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion for a

          *
             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).
continuance, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and review de

novo constitutional claims, Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We

deny in part and dismiss in part the petition for review.

      The agency did not abuse its discretion in denying Hidalgo-Jarquin’s request

for a continuance, where Hidalgo-Jarquin had already received multiple

continuances and the delay caused inconvenience to the agency. See Ahmed, 569

F.3d at 1013-14; cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir. 2008).

      Hidalgo-Jarquin’s equal protection argument regarding waivers under

8 U.S.C. § 1182(h) is unavailing. See Taniguchi v. Schultz, 303 F.3d 950, 958 (9th

Cir. 2002) (holding that a rational basis exists for excluding permanent residents,

as “aggravated felon LPRs could be viewed as less deserving of a ‘second chance’

than non-LPRs”) (citation omitted).

      In his opening brief, Hidalgo-Jarquin fails to address, and therefore has

waived any challenge to, the agency’s determination that his conviction for

possession of a controlled substance for sale under California Health & Safety

Code § 11378 constitutes a drug trafficking aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B), rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

See Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (“[W]e will not




                                           2                                   09-72043
ordinarily consider matters on appeal that are not specifically and distinctly argued

in appellant’s opening brief.”) (citation omitted).

      Hidalgo-Jarquin’s contention that application of the grounds of removability

to him is a violation of substantive due process, in light of the equities present in

his case, is unavailing. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th

Cir. 2006) (“[O]ur cases have long recognized the power to expel or exclude aliens

as a fundamental sovereign attribute exercised by the Government’s political

departments largely immune from judicial control.”) (citation and quotations

omitted). Hidalgo-Jarquin’s contention that application of the grounds of

removability to him violates international law is likewise unavailing. See id. at

979-99.

      We lack jurisdiction to consider the remaining contentions raised by

Hidalgo-Jarquin in his opening brief, as they were not presented to the agency. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

      The government’s “motion to strike new evidence submitted with

petitioner’s opening brief” is granted. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court

of appeals shall decide the petition only on the administrative record on which the

order of removal is based.”).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


                                           3                                     09-72043
