NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 2 2019 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS GABRIEL ESPINOZA-OREJEL, No. 17-73294 Petitioner, Agency No. A092-284-488 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 11, 2019 San Francisco, California Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges. Gabriel Espinoza-Orejel (Espinoza) petitions for review of a decision of the Board of Immigration Appeals (Board). We dismiss Espinoza’s petition in part, grant in part, and remand. In 2016, Espinoza, a lawful permanent resident, was convicted for transporting or offering to transport methamphetamine in violation of California Health and Safety Code section 11379(a) (Section 11379). Because of this conviction, the Department of Homeland Security initiated removal proceedings against Espinoza. An immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. judge (IJ) held that Espinoza was removable because of this conviction and denied his applications for asylum, for withholding of removal, and for deferral of removal under the Convention Against Torture (CAT). The Board affirmed the IJ’s removability finding on the basis that Espinoza’s Section 11379 conviction constituted both (1) a deportable controlled substance violation under 8 U.S.C. § 1227(a)(2)(B)(i) and (2) an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) that rendered him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii). The Board next held that Espinoza’s conviction constituted “an aggravated felony that is also a particularly serious crime,” which rendered Espinoza ineligible for asylum and for withholding of removal. Finally, the Board held that Espinoza was ineligible for deferral of removal under the Convention Against Torture (CAT). We review the Board’s determination of purely legal questions de novo, Vasquez- Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), including whether a state conviction is an offense with immigration consequences, see Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016) and whether a conviction under state law is an aggravated felony, Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1038 (9th Cir. 2011). We review the Board’s determination that a crime is “particularly serious” for an abuse of discretion, and the denial of CAT relief for substantial evidence. Avendano- Hernandez v. Lynch, 800 F.3d 1072, 1077–78 (9th Cir. 2015). On appeal Espinoza argues, for the first time, that his Section 11379 conviction involving methamphetamine does not qualify as a removable offense under the 2 Immigration and Nationality Act (INA) because California’s definition of methamphetamine is purportedly broader than the federal definition of methamphetamine and indivisible. We lack jurisdiction to consider this argument because Espinoza failed to raise this issue before the Board. The INA provides this court jurisdiction over a final order of removal “only if . . . the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “A petitioner’s failure to raise an issue before the [Board] generally constitutes a failure ...
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