                                                                          FILED
                            NOT FOR PUBLICATION
                                                                           JUL 22 2016

                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEONEL RIVAS-DURAN,                             No. 13-72245

              Petitioner,                       Agency No. A043-431-491

 v.
                                                MEMORANDUM*
LORETTA E. LYNCH, Attorney General

              Respondent.


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


                        Argued and Submitted June 7, 2016
                              Pasadena, California

Before: GOULD, MELLOY,** and HURWITZ, Circuit Judges.

      Leonel Rivas-Duran, a native and citizen of El Salvador, petitions for review

of the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal of an

order of removal. Rivas-Duran challenges the denial of his applications for asylum,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
withholding of removal, and deferral of removal under the Convention Against

Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. “We review the

BIA’s denials of asylum, withholding of removal, and CAT relief for substantial

evidence,” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2013), and we

review questions of law de novo, Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir.

2012). We dismiss the petition in part and deny in part.

      Rivas-Duran was convicted by a jury of assault with a deadly weapon, in

violation of California Penal Code section 245(a)(1), and was sentenced to three years

in prison. This conviction is an aggravated felony and forms a basis for removal under

8 U.S.C. § 1227(a)(2)(A)(iii). See United States v. Grajeda, 581 F.3d 1186, 1192 (9th

Cir. 2009) (holding that assault with a deadly weapon is categorically a crime of

violence); 8 U.S.C. § 1101(a)(43)(F) (defining an aggravated felony as a crime of

violence); see also United States v. Jimenez-Arzate, 781 F.3d 1062, 1064–65 (9th Cir.

2015) (per curiam) (reaffirming the holding of Grajeda). Rivas-Duran presents three

arguments on appeal. We consider each in turn.

      First, Rivas-Duran argues that the IJ and the BIA erred in concluding that he

is ineligible for withholding of removal because he was convicted of a particularly

serious crime. We do not have jurisdiction to review the agency’s particularly serious

crime determination. See 8 U.S.C. § 1252(a)(2)(C) (establishing a bar on judicial


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review of “any final order of removal against an alien who is removable by reason of

having committed [certain crimes]”).            Rivas-Duran has not presented any

constitutional claims or questions of law that would enable us to review his petition

in this respect. See 8 U.S.C. § 1252(a)(2)(D). We note that the agency applied the

proper standard by examining the factors set forth in In re Frentescu, 18 I. & N. Dec.

244 (B.I.A. 1982), but we cannot re-weigh these factors. Pechenkov v. Holder, 705

F.3d 444, 448 (9th Cir. 2012). Further, although the agency considered the merits of

Rivas-Duran’s applications for relief, the BIA noted that these findings merely

provided an alternate basis for denial. See Pechenkov, 705 F.3d at 448 (permitting the

Court to exercise its jurisdiction where “an IJ denies relief on the merits, for failure

to demonstrate the requisite factual grounds for relief, rather than in reliance on the

conviction”). Therefore, we dismiss this portion of Rivas-Duran’s petition.

      Second, Rivas-Duran argues that the BIA erred in finding that he did not contest

the IJ’s finding that he was ineligible for asylum due to his conviction. However,

Rivas-Duran does not point to any section of his BIA brief (nor could we locate any)

that would support his contention. “A petitioner’s failure to raise an issue before the

BIA generally constitutes a failure to exhaust.” Sola v. Holder, 720 F.3d 1134, 1135

(9th Cir. 2013) (per curiam). As such, this claim is unexhausted and we do not have

jurisdiction to review it. See id. (“This court may review a final order of removal only


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if ‘the alien has exhausted all administrative remedies available to the alien as of

right.’” (quoting 8 U.S.C. § 1252(d)(1))). Therefore, we dismiss this portion of Rivas-

Duran’s petition.

      Finally, Rivas-Duran argues that the IJ and the BIA erred in denying relief on

the merits of his petitions for asylum, withholding of removal, and protection under

the CAT. As discussed above, we do not have jurisdiction to review Rivas-Duran’s

withholding of removal and asylum claims. However, we maintain jurisdiction to

review Rivas-Duran’s claim for deferral of removal under the CAT. See Edu v.

Holder, 624 F.3d 1137, 1141–42 (9th Cir. 2010) (“[T]he jurisdiction-stripping

provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive us of jurisdiction over denials

of deferral of removal under the CAT, which are always decisions on the merits.”).

We conclude that substantial evidence supports denying Rivas-Duran deferral of

removal under the CAT, as nothing in the record compels a conclusion contrary to the

IJ’s decision. See Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). In

particular, as noted by the IJ and the BIA, Rivas-Duran’s assertions that he will be

tortured in El Salvador appear to be based on speculation. Accordingly, we deny this

portion of the petition.

      PETITION DISMISSED IN PART, DENIED IN PART.




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