VIDAL PORTILLO-BENAVIDES V. ERIC HOLDER, JR., No. 10-72520 (9th Cir. 2013)
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FILED DEC 02 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VIDAL REYNALDO PORTILLOBENAVIDES, No. 10-72520 Agency No. A046-407-205 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Vidal Reynaldo Portillo-Benavides, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his motion to reopen removal proceedings conducted in absentia and denying his motion to * 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). remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the agency s denial of a motion to remand, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005), and review de novo questions of law, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We dismiss in part and deny in part the petition for review. Portillo-Benavides does not challenge the BIA s determination that his conviction under California Health and Safety Code § 11350(a) is a controlled-substance violation that renders him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II). We therefore lack jurisdiction to review the agency s determination that Portillo-Benavides failed to credibly establish that exceptional circumstances caused him to miss his hearing. See 8 U.S.C. § 1252(a)(2)(C). The BIA did not abuse its discretion in denying the motion to remand on the ground that Portillo-Benavides did not submit evidence demonstrating prima facie eligibility for relief. See Ochoa-Amaya v. Gonzales, 479 F.3d 989, 992 (9th Cir. 2007) (it is the petitioner s burden to establish prima facie eligibility for the relief sought). It follows that the agency did not violate Portillo-Benavides due process rights by denying the motion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 10-72520
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