NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR DAVID RIVERA-ESQUIVEL, No. 15-73482 Petitioner, Agency No. A074-384-216 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 10, 2021** Seattle, Washington Before: GOULD, TALLMAN, and BUMATAY, Circuit Judges. Petitioner Cesar David Rivera-Esquivel challenges a final removal order in which the Board of Immigration Appeals (BIA) ordered him deported to Mexico. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part for lack of jurisdiction. * 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). 1. Rivera argues that the agency improperly applied the modified categorical approach to his conviction under Nevada Revised Statute § 453.321 (1998) because that state statute is indivisible as to the identity of the relevant controlled substance. But he did not raise this issue before the BIA, so it is unexhausted and we lack jurisdiction over it. See Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014) (“Generally, 8 U.S.C. § 1252(d)(1) mandates exhaustion and therefore bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below.” (cleaned up)); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (clarifying that a petitioner is “deemed to have exhausted only those issues he raised and argued in his brief before the BIA”). 2. In the alternative, Rivera claims that § 453.321 is indivisible with regard to its actus reus requirement so it cannot be subject to the modified categorical approach and the agency erred in so concluding. We disagree. Several binding Nevada Supreme Court decisions establish that § 453.321 is divisible as to its actus reus requirement by analyzing the sale of controlled substances, of which Rivera was convicted, as a stand-alone offense even though it is not the only act enumerated in the statute. See Sparks v. State, 591 P.2d 268, 269 (Nev. 1979) (per curiam); Hamilton v. State, 582 P.2d 376, 377 (Nev. 1978) (per curiam); Ward v. Sheriff, Clark Cnty., 529 P.2d 798, 799 (Nev. 1974) (per curiam); cf. Mathis v. 2 United States, 136 S. Ct. 2243, 2256 (2016) (explaining that the divisibility question is settled if “a state court decision definitively answers the question” in the affirmative). The agency correctly found that Rivera’s prior conviction under § 453.321 is subject to the modified categorical approach and we thus deny the petition with regard to this issue. See Mathis, 136 S. Ct. at 2256; Ward, 529 P.2d at 798–99. And we decline to address Rivera’s unexhausted suggestion that his conviction record is vague as to the actus reus to which he …
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