NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISMAEL HERNANDEZ,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 15

- 72564 Agency No. A088

- 913

- 748

MEMORANDUM *

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

Submitted May 24, 2017 **

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON, Circuit Judges. Ismael Hernandez, a native and citizen of Mexico, petitions for review of the

Boar d of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) removal order pretermitting his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

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

- 3.

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

# FILED

JUN 1 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 15

- 72564

questions of law. Hernan dez

- Mancilla v. Holder , 633 F.3d 1182, 1184 (9th Cir.

2011 )

. We review for abuse of discretion the denial of a continuance and review de novo due process challenges. Singh v. Holder , 638 F.3d 1264, 1269, 1274 (9th Cir. 2011)

. We deny in part and dismiss in part the petition for review. The agency correctly concluded that Hernandez wa s ineligible for

cancellation of removal based on his conviction for a crime of domestic violence , where the record establishe d that he had been convicted under California Penal

Code (“CPC”) § 273.5(a). See 8 U.S.C. § 1229b( b)(1)(C) (to qualify for cancellation of removal, an alien cannot have been convicted of an offense under 8 U.S.C. § 1227(a)(2)); 8 U.S.C. § 1227(a)(2)(E)(i) (crimes of domestic violenc e are disqualifying); Carillo v. Holder , 781 F.3d 1155, 1157 (9th Cir. 2015) (a conviction under CPC § 273.5 is categorically a crime of domestic violence). Accordingly, the agency did not violate due process in pretermitting the application. See 8 C.F.R . § 1240.8(d) (alien has the burden of proof in establishing eligibility for relief from removal); Lata v. INS , 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must show error and prejudice). The agency did not abuse its discretion or violate due process in declining to
grant Hernandez a continuance for failure to show good cause, where he had not shown he had applied for post

- conviction relief and success on such relief was3 15

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speculative. See 8 C.F.R. § 1003.29 ; Singh , 638 F.3d at 1274 ( IJ not required to grant a continuance based on speculation) ; Garcia v. Lynch , 798 F.3d 876, 881 (9th Cir. 2015) (no abuse of discretion to deny a continuance where petitioner already had six months to pursue post

- conviction relief ) ; Lata , 204 F.3d at 1246. The agency also did not err or violate due process in declining to consider Hernandez’s contentions regarding his c riminal proceedings

. See Leal v. Holder , 771 F.3d 1140, 1148 n.5 (9th Cir. 2014) (alien cannot collaterally attac k a conviction in removal proceedings); Lata , 204 F.3d at 1246. We lack jurisdiction to consider Hernandez’s unexhausted contentions regarding a waiver under 8 U.S.C. §1227(a)(7)(A) and th e applicability of 8 U.S.C. § 1227(a)(2)(E)(i). See Tijani v. Holde r , 628 F.3d 1071 , 1080 (9th Cir. 20 10 ) ( “ We lack jurisdiction to review legal c laims not presented in an alien’ s administrative proceedings before the BIA” )

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