                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            APR 28 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE MAURICIO OVIEDO-                            No. 12-74099
ALVARADO,
                                                 Agency No. A073-406-828
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted April 28, 2016**
                             San Francisco, California

Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.

      Petitioner Jose Mauricio Oviedo-Alvarado petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s (“IJ”) decision denying his applications for asylum, relief under the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Immigration and Nationality Act, and protection under the Convention Against

Torture. As the parties are familiar with the facts, we do not recount them here.

We deny the petition for review.

      Oviedo-Alvarado argues that the BIA erred by concluding that his

conviction for arson in violation of California Penal Code § 451(b) was

categorically an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43)(F).

However, this argument is irrelevant because the BIA ultimately relied on the

different ground that his arson conviction was a “particularly serious crime.” See

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing

the decision of the BIA, we consider only the grounds relied upon by that agency.”

(citation omitted)). Moreover, Oviedo-Alvarado did not challenge the IJ’s

conclusion that his arson conviction was a “particularly serious crime” before this

court or the BIA. See Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008)

(stating that court of appeal “will not ordinarily consider matters on appeal that are

not specifically and distinctly argued in appellant’s opening brief” (citation

omitted)); Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008) (explaining that

failure to exhaust administrative remedies deprives this court of jurisdiction to hear

an appeal from the BIA).




                                           2
      Contrary to Oviedo-Alvarado’s contention, the BIA did not act beyond the

scope of our remand order by concluding that Oviedo-Alvarado was ineligible for

relief under a different statutory bar. See United States v. Kellington, 217 F.3d

1084, 1092 (9th Cir. 2000) (stating that “although lower courts are obliged to

execute the terms of a mandate, they are free as to ‘anything not foreclosed by the

mandate’” (citation omitted)).

      Finally, Oviedo-Alvarado has waived any matters “not specifically and

distinctly argued” in his opening brief, including the BIA’s denial of his motion to

remand to apply for special rule cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act of 1997. Husyev, 528 F.3d at 1183

(citation omitted).

      PETITION FOR REVIEW DENIED.




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