                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 14 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RUTILIO ARNULFO LANDAVERDE,                      No. 12-70137
AKA Arnulfo Landaverde, AKA Arnulfo
Rutilio Landaverde, AKA Arnulfo Melgar,          Agency No. A070-777-216
AKA Arnulfo Landaverde Melgar, AKA
Frank Melgar, AKA Arnulfo Melgar
Landaverde,                                      MEMORANDUM*

              Petitioner,

  v.

LORETTA E. LYNCH, Attorney General,

              Respondent.



RUTILIO ARNULFO LANDAVERDE,                      No. 13-73371
AKA Arnulfo Landaverde, AKA Arnulfo
Rutilio Landaverde, AKA Arnulfo Melgar,          Agency No. A070-777-216
AKA Arnulfo Landaverde Melgar, AKA
Frank Melgar, AKA Arnulfo Melgar
Landaverde,

              Petitioner,

  v.

LORETTA E. LYNCH, Attorney General,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
              Respondent.


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

                     Argued and Submitted November 4, 2015
                              Pasadena, California

Before: FARRIS, TASHIMA, and BYBEE, Circuit Judges.

      Petitioner Rutilio Landaverde petitions for review of two decisions of the

Board of Immigration Appeals (BIA). Landaverde’s first petition (Petition 12-

70137) appeals the BIA’s denial of his motion to reconsider its earlier decision

affirming the Immigration Judge’s (IJ) removal order. His second petition

(Petition 13-73371) appeals the BIA’s denial of his motion to reopen his removal

proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we review the

BIA’s “denial of a motion to reconsider or reopen for an abuse of discretion.”

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). We deny in part and

dismiss in part Petition 12-70137 and deny Petition 13-73371.

      Petition 12-70137

      The BIA did not abuse its discretion by determining that Landaverde’s 1998

conviction under California Penal Code § 288(a) was a particularly serious crime.

See Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013). Both the IJ and the


                                          2
BIA properly applied the factors outlined in Matter of Frentescu, 18 I. & N. Dec.

244, 247 (BIA 1982), performing the mandated case-specific analysis of

Landaverde’s conviction rather than merely reciting the elements of a generic

§ 288(a) offense. Indeed, the BIA discussed the particulars of Landaverde’s

conviction, noting that Landaverde had “sexual relations with a 13 year-old female

child when he was 23 years old.” This “difference in age,” the BIA reasoned,

“evidence[d] the predatory nature of [Landaverde’s] offense.” Additionally, the

BIA directly asserted that it considered “[t]he facts of the crime” in reaching its

determination that Landaverde posed a “danger to the community of the United

States.” Accordingly, we deny Petition 12-70137 insofar as it challenges the BIA’s

“particularly serious crime” determination.

      Landaverde also challenges the BIA’s failure to address his request for

deferral of removal under the Convention Against Torture (CAT). Because

Landaverde did not raise this claim before the BIA, he has not exhausted his

administrative remedies, and this court lacks jurisdiction to hear his arguments.

See 8 U.S.C. § 1252(d)(1); see also Arsdi v. Holder, 659 F.3d 925, 928–29 (9th

Cir. 2011) (“We have repeatedly held that failure to raise an issue in an appeal to

the BIA constitutes a failure to exhaust remedies with respect to that question and




                                           3
deprives this court of jurisdiction to hear the matter.”) (internal quotation marks

omitted). Accordingly, we dismiss the remainder of Petition 12-70137.

      Petition 13-73371

      The BIA did not abuse its discretion by denying Landaverde’s motion to

reopen. Landaverde argues that his counsel before the BIA was ineffective, but to

prevail on this claim, Landaverde “must demonstrate first that counsel failed to

perform with sufficient competence, and, second, that [h]e was prejudiced by

counsel’s performance.” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.

2005). Here, he has made neither showing.

      First, Landaverde’s counsel’s decision not to press the CAT claim before the

BIA was a strategic decision made after his assessment of the evidence presented

to the IJ and consultation with his client. Counsel is not required “to pursue every

claim or defense, regardless of its merit, viability, or realistic chance for success.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Salazar-Gonzalez v.

Lynch, 798 F.3d 917, 918–19 (9th Cir. 2015) (explaining that “lawyers must weigh

countless probabilities when advising their clients on what claims to pursue,

motions to file, and arguments to raise”).

      Second, even if counsel’s performance was deficient, Landaverde has not

shown that he was prejudiced. Landaverde’s claim for deferral of removal under


                                             4
CAT, even if properly raised to the BIA, would not have been viable. See Jie Lin

v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004).

      PETITION No. 12-70137 DENIED IN PART, DISMISSED IN PART.

      PETITION No. 13-73371 DENIED.




                                         5
                                                                            FILED
Landaverde v. Lynch, Nos. 12-70137 & 13-73371
                                                                            DEC 14 2015
TASHIMA, Circuit Judge, concurring in part and dissenting in part:       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


      While I agree with the majority’s disposition of Landaverde’s second

petition for review, in No. 13-73371, I disagree that the BIA did not abuse its

discretion when it determined that Landaverde had been convicted of a particularly

serious crime, rendering him ineligible for withholding of removal. I therefore

respectfully dissent, in part, from the majority’s denial of Landaverde’s petition for

review in No. 12-70137.

      We review the BIA’s application of law de novo. Blandino-Medina v.

Holder, 712 F.3d 1338, 1342-43 (9th Cir. 2013). Here, the BIA’s analysis relied

almost exclusively on the elements of Landaverde’s crime. This is contrary to both

Ninth Circuit and BIA precedent, which, instead, require the BIA to base its

determination on the unique facts and circumstances underlying the conviction.

      Under the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), only aggravated felonies “for which the alien has been sentenced

to an aggregate term of imprisonment of at least 5 years” are per se particularly

serious crimes. 8 U.S.C. § 1231(b)(3)(B)(iv). For all other convictions, the BIA

must “examine[] the individualized characteristics of the offense” on a case-by-

case basis. Blandino-Medina, 712 F.3d at 1348. Thus, the BIA cannot deem a

crime particularly serious “based solely on the elements of the offense.” Id.
Instead, its analysis must be guided by four factors, as set forth in Matter of

Frentescu: (1) the nature of the conviction; (2) the circumstances and underlying

facts of the conviction; (3) the type of sentence imposed; and (4) whether the type

and circumstances of the crime indicate that the alien will be a danger to the

community. 18 I. & N. Dec. 244, 247 (BIA 1982). Proper application of the

Frentescu factors requires the BIA to “separate [Petitioner’s crime] from an

analysis regarding any other person's conviction for the same offense.” Afridi v.

Gonzales, 442 F.3d 1212, 1219 (9th Cir. 2006), overruled on other grounds by

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc)).

      Landaverde pled guilty to committing lewd and lascivious acts with a minor

under California Penal Code § 288(a).1 He was sentenced to six days in jail, five

years of probation, and required to register as a sex offender in California. All of

the parties agree that Landaverde’s crime was not an aggravated felony. Therefore,

the BIA was obligated to examine the “individualized characteristics of the

offense” in order to deem it particularly serious.


      1
              Section 288(a) provides that “any person who willfully and lewdly
commits any lewd or lascivious act . . . upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that
person or the child, is guilty of a felony and shall be punished by imprisonment in
the state prison for three, six, or eight years.”

                                           2
      Yet, in its initial decision, the BIA focused on just three factors: (1) the

elements of § 288(a), which the agency noted is categorized as a “serious felony”

under California law; (2) the age difference between Landaverde and his victim,

which “evidence[d] the predatory nature of the offense”; and (3) the fact that

Landaverde was required to register as a sex offender. Each of these factors

primarily speaks to either the nature of the crime, or its elements.2 Later, in its

decision denying Landaverde’s motion to reconsider, the BIA also noted that “the

length of probation,” combined with the registration requirement, “demonstrates

that [Landaverde] is a danger to the community of the United States.” 3

      This truncated analysis all but ignores the second Frentescu factor, and gives

little more than cursory attention to the third and fourth factors. The BIA did not


      2
              The majority asserts that “the BIA discussed the particulars of
Landaverde’s conviction, noting that Landaverde had ‘sexual relations with a 13
year-old female child when he was 23 years old,” and that this “‘difference in age’
. . . evidence[d] the predatory nature of [Landaverde’s] offense.’” Maj. disp. at 3.
But the difference in age is an element of the offense. Section 288(a) requires a
minimum age difference of eight years (an adult of 21 years and a minor under 14
years of age), and the difference here was 10 years.
      3
              One can just as easily argue that the imposition of a sentence of
probation indicates leniency because it is less harsh than its alternative,
imprisonment. As for the registration requirement, presumably all persons
convicted of violating § 288(a) are subject to it. Moreover, Frentescu’s fourth
factor directs an examination of whether the type and circumstances of the crime
indicate that the alien will be a danger to the community, not whether the type of
sentence imposed so indicates.

                                           3
discuss any facts that differentiate this crime from any other conviction for the

same offense, except incidentally to note the “difference in age between the

respondent and the victim” in its discussion of the first Frentescu factor, the nature

of the crime. And, other than a brief mention of the length of Landaverde’s

probation, all of the factors that the BIA relied on are elements of § 288(a). They

would be present in any conviction under that statute. Thus, the BIA failed to

apply both our precedent in Blandino-Medina, and its own requirements, as set

forth in Frentescu. See Afridi, 442 F.3d at 1219 (holding that simply considering

the nature of the petitioner’s crime and the terms of his probation was not

sufficient to separate Afridi’s crime from that of any other person convicted under

the same statute).

       Because the BIA failed adequately to consider all four Frentescu factors in

making its particularly serious crime determination, I would grant Landaverde’s

petition for review in No. 12-70137 and remand for a case-specific analysis that

examines the individual characteristics of his crime. As to this issue, I respectfully

dissent.4




       4
              I agree with the majority’s dismissal of the remainder of Landaverde’s
petition for review in No. 12-70137 because Landaverde did not exhaust his
administrative remedies with respect to his CAT claim.

                                           4
