NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DONOVAN GRANT, No. 20-72735 Petitioner, Agency No. A073-507-320 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 21, 2021** San Francisco, California Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District Judge. Donovan Grant, a native and citizen of Jamaica, petitions for review of the decision of the Board of Immigration Appeals (“BIA” or “Board”) affirming an * 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). *** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. immigration judge’s (“IJ”) denial of his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and dismiss the petition in part and deny it in part. 1. Grant argues that the IJ did not give him sufficient opportunity to investigate or study evidence proffered by the government, in violation of his due process rights. But the BIA did not consider this issue because Grant failed to raise it. A petitioner’s failure to argue an issue before the BIA ordinarily constitutes a failure to exhaust, depriving this court of jurisdiction to consider the issue. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). Although constitutional claims are generally excepted from this exhaustion requirement, due process claims that assert procedural error are correctable by the agency and therefore must be exhausted. Sola, 720 F.3d at 1135–36; Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore dismiss the petition as to this due process claim. Cf. Brezilien v. Holder, 569 F.3d 403, 411–12 (9th Cir. 2009). Grant’s remaining due process claims, while exhausted, lack merit. Grant argues the agency failed to properly consider all the evidence he submitted, but “an alien attempting to establish that the Board violated his right to due process by failing to consider relevant evidence must overcome the presumption that it did review the evidence.” Larita-Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2 2000). Grant did not overcome this presumption here. See Vilchez v. Holder, 682 F.3d 1195, 1200–01 (9th Cir. 2012); Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006). “Where an alien is given a full and fair opportunity to be represented by counsel, to prepare an application for . . . relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926– 27 (9th Cir. 2007). The evidence in the record does not support that Grant’s due process …
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