                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 3 2014

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



                              FOR THE NINTH CIRCUIT


BAUDELIO VALDIVIA,                                No. 12-71030

               Petitioner,                        Agency No. A092-814-524

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

               Respondent.


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

                             Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Baudelio Valdivia, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s removal order. We review for abuse of discretion the

denial of a continuance, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009),


          *
             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).
review for substantial evidence the agency’s factual findings, and review de novo

questions of law, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We

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

      The agency did not abuse its discretion in denying a continuance, where

Valdivia had already been given three continuances and did not show good cause

for an additional continuance. See 8 C.F.R. § 1003.29 (an immigration judge may

grant a motion for a continuance for good cause shown).

      Substantial evidence supports the BIA’s determination that the government

met its burden of establishing that Valdivia is removable, where the government

produced a fingerprint-verified rap sheet bearing his photo and listing his 1987

conviction for sale or transport of heroin under California Health and Safety Code

§ 11352, along with the record of conviction, and Valdivia did not produce

evidence to support his assertion that the conviction is not his. See Sanchez v.

Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (per curiam) (“The government has

the burden of establishing the grounds for removal by clear and convincing

evidence.”).

      We lack jurisdiction to consider Valdivia’s contention that his conviction

has now been expunged under California Penal Code § 1203.4, as he did not raise

this issue in his appeal to the BIA. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th


                                           2                                   12-71030
Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an

alien’s administrative proceedings before the agency).

      We also lack jurisdiction to consider Valdivia’s unexhausted contentions

that he is eligible for cancellation of removal and adjustment of status, or his

request for sua sponte reopening, as he did not seek this relief before the agency.

See id.

      Valdivia did not raise, and has therefore waived, any challenge to the BIA’s

denial of remand to seek asylum. See id. (the court will not consider issues not

raised in the opening brief).

      Substantial evidence supports the BIA’s denial of withholding of removal,

where Valdivia did not establish a clear probability of future persecution in

Mexico. See 8 C.F.R. § 1208.16(b)(2); Zehatye v. Gonzales, 453 F.3d 1182, 1190

(9th Cir. 2006) (to qualify for withholding of removal, an alien must show a clear

probability of future persecution).

      Substantial evidence also supports the BIA’s denial of relief under the

Convention Against Torture, where Valdivia did not establish that it is more likely

than not that he will be tortured by, or with the acquiescence of, the Mexican

government. See Wakkary, 558 F.3d at 1067-68 (9th Cir. 2009).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


                                           3                                       12-71030
