FILED NOT FOR PUBLICATION MAR 3 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Erick Mercado Arechiga, No. 21-243 Petitioner, Agency No. A075-486-845 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2023 San Francisco, California Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges. Partial Concurrence and Partial Dissent by Judge MILLER. Erick Mercado Arechiga, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) decision denying his appeal from an immigration judge’s (“IJ”) decision denying him asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA both conducted its own analysis and affirmed the IJ’s reasoning on the relevant issues, “our review ‘is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. I.N.S., 204 F.3d 985, 990 (9th Cir. 2000)). We “review for abuse of discretion the BIA’s . . . determination that an individual was convicted of a particularly serious crime [(‘PSC’)].” Mairena v. Barr, 917 F.3d 1119, 1124 n.4 (9th Cir. 2019). “In particular, we review whether ‘the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.’” Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (alteration in original) (quoting Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)). Generally, “if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum.” Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (quoting Tejeda-Mata v. I.N.S., 626 F.2d 721, 726 (9th Cir. 1980)). However, “we retain jurisdiction to review due process challenges” that are not based on “correctable procedural errors,” and we review due process challenges de novo. Agyeman v. I.N.S., 296 F.3d 871, 876–77 (9th Cir. 2002). 2 Because the parties are familiar with the factual and procedural history of the case, we discuss them only as necessary. We grant and remand in part, dismiss in part, and deny in part the petition for review. I The IJ and BIA abused their discretion in finding that Mercado Arechiga committed a PSC. When determining whether a noncitizen committed a particularly serious crime, an immigration court must consider “the circumstances and underlying facts of the conviction.” Bare v. Barr, 975 F.3d 952, 961 (9th Cir. 2020) (quoting Blandino-Medina v. Holder, 712 F.3d 1338, 1347–48 (9th Cir. 2013). The IJ and BIA improperly limited their analysis of the underlying facts of Mercado Arechiga’s crime to “the information filed in the criminal case, which simply restated the statutory definition of the crime with the victim’s name inserted.” …
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