                                                                           FILED
                             NOT FOR PUBLICATION                           DEC 23 2014

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



                             FOR THE NINTH CIRCUIT


ROBERT ANTHONY SMALL,                            No. 12-74122

               Petitioner,                       Agency No. A039-746-910

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

               Respondent.


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

                      Argued and Submitted December 8, 2014
                             San Francisco, California

Before:       TASHIMA and PAEZ, Circuit Judges, and QUIST, Senior District
              Judge.**

       Robert Small, a native of Jamaica, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)

order terminating his previously granted withholding of removal and denying his


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.
application for deferral of removal under the Convention Against Torture (“CAT”).

This Court has jurisdiction to review constitutional claims and questions of law

raised by Small in his petition for review. See 8 U.S.C. § 1252(a)(2)(D).

      Small argues that his withholding of removal was improperly terminated

under 8 C.F.R. § 1208.24(b)(3). Specifically, Small argues that the IJ and BIA

impermissibly aggregated the prison sentences of his convictions that were

committed before he was granted withholding of removal in 2001 with those

committed after the grant.

      As an initial matter, we conclude that Small exhausted this argument with

the BIA. This Court construes pro se claims “liberally for purposes of the

exhaustion requirement.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.

2008). Small raised the argument that his withholding of removal was improperly

terminated in his brief to the BIA. His assertions were sufficient to put the BIA on

notice that this issue was in front of it, particularly under the “forgiving standard[]”

used to review pro se appeals. Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir.

2011); see also Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir.

2007) (holding a petitioner’s “failure to elaborate on his general contention with a

specific statutory argument” to be “immaterial for jurisdiction purposes”).

      However, the BIA did not address this argument. Under the “ordinary


                                           2
remand rule,” “we are not permitted to decide a claim that the immigration court

has not considered in the first instance.” Montes-Lopez v. Gonzales, 486 F.3d

1163, 1165 (9th Cir. 2007) (citing INS v. Ventura, 537 U.S. 12, 16 (2002) (per

curiam)).

      Accordingly, we GRANT Small’s petition for review in part, as to his claim

that his grant of withholding of removal was improperly terminated, and

REMAND this issue to the BIA so that it may consider Small’s claim in the first

instance.1




      1
            We do not reach the remaining issues raised in Small’s petition for
review. He is free to re-raise those issues in a subsequent petition for review after
the BIA adjudicates his withholding of removal claim if it results in a final order of
removal.

                                          3
