NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ECTOR TORRES

- REVILLA, AKA Jesse Torres, AKA Hector Torres Revilla, AKA Hector Torres

- Tevilla,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 14

- 71993 Agency No. A096

- 027

- 337

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 13, 2018 **
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Ector Torres

- Revilla, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying voluntary departure and ordering him

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

FEB 22 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 14

- 71993

removed . Our jurisd iction is governed by 8 U.S.C. § 1252

. We review for abuse of
discretion the denial of a continuance and review de novo constitutional claim s and question s of law

. Ahmed v. Holder , 569 F.3d 1009, 1012 (9th Cir. 2009) . We deny in part and dismiss in part th e petition for review.
United States v. Martinez

- Lopez forecloses Torres

- Revilla ’ s contention that California Health & Safety Code (“CHSC”) § 11352(a) is not divisible. 864 F.3d 1034, 104 4

- 45 (9th Cir. 2017 ) ( en banc ) , cert. denied , 138 S. Ct. 523 (2017) ( appropriate to apply the modified categorical approach to CHSC § 11352(a) , because the statute “ is d ivisible with regard to both its controlled substance requirement and its actus reus requirement”)

. Accordingly, the agency did not err
in its determination that Torres

- Revilla was convicted of an aggravated felony, and that he was therefore ineligible for the relief he sought. See 8 U.S.C. §§ 1229b(b)(1)(C), 1229c(b)(1)(C), 1225(a)(2). In light of our disposition, w e do not reach Torres

- Revilla’s contention that
he exhausted his challenge to the IJ’s determination that his conviction under
CHSC § 11352(a) was a controlled substance offense. S ee Simeonov v. Ashcroft , 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to reach

non - dispositive issues). The agency did not err or abuse its discretion in denying for lack of good

cause Torres

- Revilla’s motion for a continuance to pursue post

- conviction relief.3 14

- 71993

See 8 C.F.R. § 1003.29; Ahmed , 569 F.3d at 1012 (outlining factors for the reviewing court to consider when reviewing the agency’s denial of a continuance)

. Accordingly, to the extent Torres

- Revilla contends the agency violated due process in denying his reques t for a continuance, this co ntention fails

. See Lata v. INS , 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim). We lack jurisdiction to consider Torres

- R evilla’s unexhausted contention that he meets the requirements of Lujan Armendariz v. INS , 222 F.3d 728 (9th Cir. 2000) and the F ederal First Offender Act , where he did not raise this contention in
his brief to the BIA. See Alvarado v. Holder , 759 F.3d 112 1, 112 6 n.4 (9th Cir. 2014) (“‘ when a petitioner does file a brief,’ he will ‘be deemed to have exhausted only those issues he raised and argued in his brief before the BIA’” (internal citation omitted) (emphasis in original) )

. PETITION FOR REVIEW DENIED in part; DISMISSED in part.