NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR LOYA-LEON, No. 21-1352 Petitioner, Agency No. A073-445-689 v. MEMORANDUM * MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 10, 2023 Pasadena, California Before: FLETCHER, BERZON, and MILLER, Circuit Judges. Partial Concurrence and Partial Dissent by Judge MILLER. Oscar Loya-Leon, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal under the Immigration and Nationality Act (“INA”) and the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 (“Convention”), and deferral of removal under the Convention. We grant the petition in part and deny it in part. 1. The agency did not abuse its discretion in concluding that Loya-Leon was ineligible for asylum and withholding of removal because he was convicted of a particularly serious crime. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Although the IJ recited the reasons Loya-Leon’s drug conviction could be considered “inherently particularly serious,” she went on expressly to apply the required Matter of Frentescu,18 I. & N. Dec. 244 (BIA 1982), factors. The BIA then adopted and affirmed the IJ’s analysis under Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). See Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc). As the agency applied the correct analysis, we deny the petition as to Loya-Leon’s claims for asylum and withholding of removal under the INA and the Convention. 2. Loya-Leon did not fail to exhaust the arguments made in this court concerning the IJ’s adverse credibility determination and treatment of his expert declaration. The BIA adopted and affirmed the IJ’s decision under Burbano. The BIA’s adoption of an IJ’s decision addressing the issues raised in this court satisfies the exhaustion requirement. See Abebe, 432 F.3d at 1040–41. 2 3. The BIA and IJ erred in determining that Loya-Leon’s declaration was entirely not credible. Remand is therefore required on the merits of Loya-Leon’s application for deferral of removal under the Convention. a. The adverse credibility determination rested on the IJ’s finding that Loya-Leon’s expert made an “assessment . . . that the respondent is unreliable when it comes to recalling past events.” The expert never described Loya-Leon as “unreliable.” The expert indicated that Loya-Leon has difficulties “assess[ing] the intentions of others”; that “[h]e may need more time to respond to questions or to be asked questions repeatedly” because his current medication “causes him to at times have difficulty concentrating and difficulties with his memory”; and that during the evaluation his “account of the events he experienced and his reactions to them were not consistently coherent,” as he has “difficulties presenting a …
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