NOT FOR PUBLICATION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, CLERK

U.S. COURT OF APPEALS
2 14-71993 

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

discretion the denial of a continuance and review de novo constitutional claims and 

questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny 

in part and dismiss in part the 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, 1044-45 (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 divisible 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, we 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. See 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 request for a continuance, this contention 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-Revilla’s unexhausted contention 

that he meets the requirements of Lujan Armendariz v. INS, 222 F.3d 728 (9th Cir. 

2000) and the Federal First Offender Act, where he did not raise this contention in 

his brief to the BIA. See Alvarado v. Holder, 759 F.3d 1121, 1126 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.