NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLEMENT TAIWO BABATUNDE, AKA No. 19-70815 T. Clement Babatunde, Agency No. A206-881-658 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 12, 2022 Portland, Oregon Before: BERZON and CHRISTEN, Circuit Judges, and BLOCK,** District Judge. Clement Taiwo Babatunde appeals the Board of Immigration Appeals’ (“BIA”) decision ordering him removed. We lack jurisdiction over two of the issues Babatunde raises but remand for consideration of the third. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. 1. We do not have subject matter jurisdiction over issues a petitioner fails to raise before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004). We can consider some constitutional issues not raised before the agency, but not procedural errors that the agency could have addressed had the claim been raised before it. Id. at 778; see Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013). Babatunde’s due process challenges concern procedural matters the BIA could have addressed had he raised them, but he did not. We therefore lack jurisdiction over the due process issues. 2. We also lack jurisdiction over Babatunde’s challenge to the BIA’s determination that his conviction was a “particularly serious crime” that bars his asylum and withholding of removal claims. Babatunde did not raise the particularly serious crime issue at all in his brief before the BIA, Barron, 358 F.3d at 676–78, and the BIA did not address the merits of the issue, Rodriguez- Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013). 3. Babatunde did, however, exhaust his challenge to the IJ’s Convention Against Torture (“CAT”) determination. To meet the exhaustion requirement, a petitioner must specify which issues form the basis of the appeal, such that the BIA is on notice and has an opportunity to correct any error. See Zara v. Ashcroft, 383 F.3d 927, 930–31 (9th Cir. 2004). We “do not employ the exhaustion doctrine in a formalistic manner.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2 2018) (quoting Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)); Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). Where a petitioner “explicitly mentioned” in his BIA brief that he was “requesting reversal of the IJ’s denial of relief under the Convention Against Torture,” the request is “sufficient to put the BIA on notice that he was challenging the IJ’s Convention determination,” and “the agency had an opportunity to pass on this issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). When considering exhaustion, we construe pro se filings liberally. See Agyeman v. INS, 296 F.3d 871, …
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