NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT IVAN DANIEL OLIVARES-MORALES, No. 14-73513 Petitioner, Agency No. A040-198-538 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 16, 2017 Submission Deferred December 8, 2017 Resubmitted September 14, 2021 San Francisco, California Before: GOULD and MURGUIA, Circuit Judges, and FREUDENTHAL,** District Judge. Mr. Olivares-Morales (Petitioner) petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal from an Immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. 1 Judge’s (IJ) order of removal. We have jurisdiction pursuant to the exception to the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) for reviewing questions of law and denial of relief under the Convention Against Torture (CAT). Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017); Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). We deny the petition. Petitioner is a fifty year old male, native and citizen of El Salvador. He entered the United States as a lawful permanent resident in 1986. In 2004 he was convicted of possession of a controlled substance with intent to sell in violation of Nevada Revised Statute (NRS) § 453.337. This conviction resulted in the commencement of his removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner now agrees the BIA properly denied his claims for asylum and cancellation of removal given this Court’s decision in United States v. Figueroa- Beltran, 995 F.3d 724 (9th Cir. 2021) and the Nevada Supreme Court’s decision in Figueroa-Beltran v. United States, 467 P.3d 615 (Nev. 2020). Petitioner concedes his 2004 conviction constitutes an aggravated felony; thus, he is ineligible for asylum and cancellation of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i) (ineligibility for asylum if convicted of an aggravated felony); id. § 1229b(a)(3) (ineligibility for cancellation of removal if convicted of an aggravated felony). Petitioner argues the BIA erred in concluding he failed to challenge the IJ’s finding that he had been convicted of a “particularly serious crime” for the purposes 2 of withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). Because Petitioner was not sentenced for his 2004 felony “to an aggregate term of imprisonment of at least 5 years,” see id. § 1231(b)(3)(B), Petitioner argues his conviction does not constitute a “particularly serious crime.” Petitioner also argues the BIA erred in finding he was not entitled to deferral of removal under CAT, 8 C.F.R. § 1208.17. A failure to raise an issue to the BIA constitutes a failure to exhaust, depriving this court of jurisdiction. See Vargas v. U.S. Dep’t of Immigr. & Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987). A petitioner cannot make a general challenge to the IJ’s decision, …
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