NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YOSVANY ALONSO ELIZALDE, No. 20-72079 Agency No. A213-352-781 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. YOSVANY ALONSO ELIZALDE, No. 22-524 Agency No. A213-352-781 Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 29, 2023 Moscow, Idaho Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges. Partial Concurrence and Partial Dissent by Judge FORREST. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Yosvany Alonso Elizalde, a native and citizen of Cuba, petitions for review of two orders of removal by the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of his application for asylum under the Immigration and Nationality Act.1 1. The IJ held that Elizalde failed to meet the standard for asylum and that the Third Country Transit Rule separately barred his asylum application. In June 2020, the BIA affirmed without opinion. While Elizalde’s petition for review of the BIA’s decision was pending before us in October 2021, the BIA sua sponte reopened and vacated its June 2020 decision because the Third Country Transit Rule had been enjoined by a federal district court. The BIA issued a new decision, affirming the IJ “for the reasons stated in the [IJ’s] decision” and expressly disclaimed reliance on the Third Country Transit Rule. We determine our own jurisdiction de novo. Saavedra-Figueroa v. Holder, 625 F.3d 621, 623 (9th Cir. 2010). Elizalde contends that we retain jurisdiction over the BIA’s June 2020 decision. We disagree. “Once a petition for review has been filed, federal court jurisdiction is divested . . . where the BIA subsequently vacates . . . the decision under review.” Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by 1 Elizalde also sought withholding of removal and relief under the Convention Against Torture (CAT) before the agency. Elizalde’s brief does not challenge the agency’s denial of those claims. Accordingly, any challenges to them are waived. Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir. 2013). 2 Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc); accord Saavedra-Figueroa, 625 F.3d at 624. The BIA vacated its June 2020 decision, so we dismiss the portion of Elizalde’s petition challenging that decision for lack of jurisdiction. 2. Elizalde also claims that the IJ did not fulfill his duty to develop the record for a pro se asylum applicant. See Agyeman v. INS, 296 F.3d 871, 876–77 (9th Cir. 2002). We review such challenges de novo, Olea-Serefina v. Garland, 34 F.4th 856, 866 (9th Cir. 2022), but lack jurisdiction if the challenge was not raised before the BIA, Agyeman, 296 F.3d at 877. Though pro se litigants are held to a lower standard and need not use “the correct …
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