                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 02 2016

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



                             FOR THE NINTH CIRCUIT


BENJAMIN ORTEGA-NUNEZ, AKA                       No. 12-70169
Benjamin Nunez Ortega, AKA Benjamin
Ortega,                                          Agency No. A026-550-695

               Petitioner,
                                                 MEMORANDUM*
 v.

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted April 26, 2016**

Before:        McKEOWN, WARDLAW, and PAEZ, Circuit Judges.

      Benjamin Ortega-Nunez, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his application for cancellation of removal.


          *
             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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of

law. Cabantac v. Holder, 736 F.3d 787, 792 (9th Cir. 2013). We deny in part and

dismiss in part the petition for review.

      Under the modified categorical approach, the agency correctly concluded

that Ortega-Nunez’ convictions under California Vehicle Code § 10851(a) were

aggravated felony theft offenses under 8 U.S.C. § 1101(a)(43)(G), where the

record of conviction established that Ortega-Nunez’ was convicted as a principal

and that the terms of imprisonment imposed were at least one year. See Duenas-

Alvarez v. Holder, 733 F.3d 812, 814-815 (9th Cir. 2013) (holding that we “apply

the modified categorical approach to determine whether Petitioner was convicted

as a principal, instead of as an accessory” under California Vehicle Code

§ 10851(a)); Cabantac, 736 F.3d at 793-94 (“[W]here, as here, the abstract of

judgment or minute order specifies that a defendant pleaded guilty to a particular

count of the criminal complaint or indictment, we can consider the facts alleged in

that count.”). Accordingly, the agency correctly concluded that Ortega-Nunez was

ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).

      To the extent Ortega-Nunez contends that his conviction is not an

aggravated felony because he did not commit a permanent theft, we lack

jurisdiction over that unexhausted contention. See Tijani v. Holder, 628 F.3d 1071,


                                           2                                  12-70169
1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not

presented in an alien’s administrative proceedings before the agency).

      We do not reach Ortega-Nunez’ contention that his convictions do not

constitute crimes involving moral turpitude because the agency never concluded

that his convictions were crimes involving moral turpitude. Simeonov v. Ashcroft,

371 F.3d 532, 538 (9th Cir. 2004) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is unnecessary to the

results they reach.” (citation and quotation marks omitted)).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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