                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 16 2013

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



                             FOR THE NINTH CIRCUIT


JOSE HUERTA-PENA,                                No. 11-72195

               Petitioner,                       Agency No. A038-839-434

  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.

       Jose Huerta-Pena, 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 removal order. Our jurisdiction is governed by 8 U.S.C.




          *
             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).
§ 1252. We review de novo questions of law. Ramirez-Villalpando v. Holder, 645

F.3d 1035, 1038 (9th Cir. 2011). We deny in part and dismiss in part the petition

for review.

      The agency correctly determined that Huerta-Pena is ineligible for

cancellation of removal because his conviction under California Penal Code

§ 487(a) constitutes an aggravated felony. See 8 U.S.C. §§ 1229b(a)(3),

1101(a)(43)(G) (a theft offense for which the term of imprisonment is at least one

year is an aggravated felony); see also Ramirez-Villalpando, 645 F.3d at 1039

(modified categorical approach required to determine whether conviction under

California Penal Code § 487(a) is an aggravated felony); United States v.

Strickland, 601 F.3d 963, 968-69 (9th Cir. 2010) (en banc) (docket sheet may be

considered when applying the modified categorical approach).

      We lack jurisdiction to consider Huerta-Pena’s contention that the agency

should not have considered the felony complaint because he did not raise that issue

before the agency and therefore failed to exhaust his administrative remedies. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction

to review contentions not raised before the agency).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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