                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 13 2013

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




                              FOR THE NINTH CIRCUIT



DEVON ANTHONY BENNETT, a.k.a                      No. 11-73442
Anthony Bennett, a.k.a. Devon Bennett,
                                                  Agency No. A027-873-876
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Devon Anthony Bennett, a native and citizen of Jamaica, petitions for

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

from an immigration judge’s (“IJ”) order denying his applications for asylum,




          *
             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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).

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

law, and review for substantial evidence the agency’s factual findings. Wakkary v.

Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and dismiss in part

the petition for review.

      Bennett’s 2009 conviction for transportation of marijuana under California

Health and Safety Code § 11360(a) renders him removable under 8 U.S.C.

§ 1227(a)(2)(B)(i) as an alien convicted of a law relating to a controlled substance.

See Pagayon v. Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2011) (petitioner’s

“pleading stage” admission that his conviction involved [marijuana] is sufficient to

establish his removability). Bennett’s 2009 conviction is final for immigration

purposes. Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). We need not

address the remaining ground of removability.

      Bennett’s contention that the IJ violated due process by conducting

proceedings without his original alien file fails because he has not established

prejudice. Bennett’s assertion that the original file likely contains evidence

refuting the existence of a 2005 entry visa, and proving the existence of an S visa

and various arrangements related to the Federal Bureau of Investigation (“FBI”), is

not supported by any independent evidence of the alleged S visa or the FBI


                                           2                                     11-73442
arrangements. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring

error and prejudice to prevail on a due process claim).

         We lack jurisdiction to review whether the BIA abused its discretion in

making its particularly serious crime determination, and Bennett has not raised any

colorable constitutional or legal challenges to the determination that his 2000

conviction constitutes a particularly serious crime. 8 U.S.C. § 1252(a)(2)(D);

Pechenkov v. Holder, No. 08-73287, 2012 WL 5995430, at *3-4 (9th Cir. Dec. 3,

2012) (our jurisdiction is limited to colorable constitutional claims and legal

questions).

         Substantial evidence supports the agency’s determination that Bennett failed

to establish that it is more likely than not that he would be tortured if he were

returned to Jamaica. See Wakkary, 558 F.3d at 1067-68; Pechenkov, 2012 WL

5995430, at *3-4 (we retain jurisdiction over challenges to a CAT determination

where the agency denies relief on the merits).

         We lack jurisdiction to consider Bennett’s remaining contentions because he

failed to raise these issues before the BIA and therefore failed to exhaust his

administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004).




                                            3                                       11-73442
      Bennett’s second motion for a stay of removal pending review is denied.

See Nken v. Holder, 556 U.S. 418, 426 (2009); Leiva-Perez v. Holder, 640 F.3d

962, 970 (9th Cir. 2011) (per curiam).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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