                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 16 2013

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




                             FOR THE NINTH CIRCUIT



JOAQUIN GARCIA ROSAS,                            No. 11-72724

               Petitioner,                       Agency No. A097-347-139

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

               Respondent.



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

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Joaquin Garcia Rosas, a native and citizen of Mexico, petitions pro se for

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

from the removal order of an immigration judge (“IJ”). We have jurisdiction under

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


          *
             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).
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), and review for abuse of

discretion the denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243,

1246 (9th Cir. 2008) (per curiam). We deny the petition for review.

      The agency correctly concluded that Garcia Rosas’s conviction for

possession of marijuana for sale in violation of section 11359 of the California

Health and Safety Code constitutes a conviction for an aggravated felony under

8 U.S.C. § 1101(a)(43)(B). See Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.

2008) (“[A] state drug crime is an aggravated felony if it would be punishable as a

felony under the federal drug laws”). The agency also correctly concluded that

Garcia Rosas’s aggravated-felony conviction rendered him statutorily ineligible for

cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(a)(3)

(disqualifying aggravated felons from cancellation of removal), 1229c(b)(1)(C)

(requiring a showing of good moral character to qualify for voluntary departure),

1101(f)(8) (precluding aggravated felons from demonstrating good moral

character). The validity of this conviction is not properly before us. See

Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner

may not collaterally attack his state court conviction on a petition for review of a

BIA decision.”).




                                           2                                    11-72724
      Because Garcia Rosas is statutorily ineligible for the requested relief, he

cannot demonstrate that the IJ erred or violated due process by pretermitting his

applications without first conducting a merits hearing. See Simeonov, 371 F.3d

at 538.

      Garcia Rosas also has failed to demonstrate that the IJ abused his discretion

or violated due process by not continuing the proceedings in order to afford Garcia

Rosas an opportunity to seek post-conviction relief, because post-conviction relief

remained speculative at the time of the hearing. See Sandoval-Luna, 526 F.3d

at 1247 (identifying no abuse of discretion or due process violation from an IJ’s

refusal to continue proceedings when no relief was then immediately available).

      PETITION FOR REVIEW DENIED.




                                          3                                    11-72724
