NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ESTEBAN HERNANDEZ, No. 15-72945 15-73559 Petitioner, 16-71207 v. Agency No. A092-330-324 WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 5, 2020 San Francisco, California Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges. Esteban Hernandez petitions for review of the Board of Immigration Appeals (“BIA”) decision denying him relief from removal in the form of withholding of removal under 8 U.S.C. § 1231(b)(3) and deferral of removal under the Convention Against Torture (“CAT”). He makes an additional claim that he is entitled to an injunction against removal under the state-created danger doctrine. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction under 8 U.S.C. § 1252.1 We dismiss his petition in part and deny it in part. 1. We lack jurisdiction to consider Hernandez’s claim that the Immigration Judge (“IJ”) did not consider the appropriate factors in making her determination that Hernandez had been convicted of a particularly serious crime and thus was ineligible for withholding of removal because Hernandez did not present this argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Hernandez’s argument that we may address the claim notwithstanding his failure to exhaust it before the BIA is meritless. Although “we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency,” Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018), the BIA 1 Section 1252 provides that “[n]otwithstanding any other provision of law . . . no court shall have jurisdiction to review any final order or removal against an alien who is removable by reason of having committed” certain criminal offenses, but preserves jurisdiction over “constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(C)–(D). The United States Supreme Court recently granted certiorari in Nasrallah v. Barr, No. 18-1432, which presents the question “[w]hether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” Petition for a Writ of Certiorari, Nasrallah v. Barr, No. 18-1432 (May 14, 2019), cert. granted, 140 S. Ct. 428 (Oct. 18, 2019). We decide this case in accordance with current Ninth Circuit precedent, under which we have jurisdiction over Hernandez’s challenge to the denial of deferral of removal under the CAT. See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012). Because any determination by the Supreme Court that we lack jurisdiction would have no effect on the outcome of this case, we proceed under our existing caselaw. 2 did not address this claim on the merits. The BIA concluded that Hernandez waived his claim ...
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