                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 02 2013

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



                              FOR THE NINTH CIRCUIT


VIDAL REYNALDO PORTILLO-                         No. 10-72520
BENAVIDES,
                                                 Agency No. A046-407-205
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Vidal Reynaldo Portillo-Benavides, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s decision denying his motion to

reopen removal proceedings conducted in absentia and denying his motion to

          *
             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).
remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the agency’s denial of a motion to remand, Movsisian v. Ashcroft, 395

F.3d 1095, 1098 (9th Cir. 2005), and review de novo questions of law, Mohammed

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

part the petition for review.

      Portillo-Benavides does not challenge the BIA’s determination that his

conviction under California Health and Safety Code § 11350(a) is a

controlled-substance violation that renders him inadmissible under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). We therefore lack jurisdiction to review the agency’s

determination that Portillo-Benavides failed to credibly establish that exceptional

circumstances caused him to miss his hearing. See 8 U.S.C. § 1252(a)(2)(C).

      The BIA did not abuse its discretion in denying the motion to remand on the

ground that Portillo-Benavides did not submit evidence demonstrating prima facie

eligibility for relief. See Ochoa-Amaya v. Gonzales, 479 F.3d 989, 992 (9th Cir.

2007) (it is the petitioner’s burden to establish prima facie eligibility for the relief

sought). It follows that the agency did not violate Portillo-Benavides’ due process

rights by denying the motion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000) (requiring error and substantial prejudice to prevail on a due process claim).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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