                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       NOV 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

FOUER ABDALLAH FRAIHAT, AKA                     No.    18-71187
Kamon Abdun Fryhaat,
                                                Agency No. A093-167-376
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                    Argued and Submitted November 13, 2019
                              Pasadena, California

Before: FERNANDEZ, M. SMITH, and MILLER, Circuit Judges.

      Fouer Abdallah Fraihat seeks review of a final order of the Board of

Immigration Appeals upholding the immigration judge’s determinations that

(1) Fraihat committed aggravated felonies and particularly serious crimes, and

(2) Fraihat did not demonstrate that he was entitled to deferral of removal under

the Convention Against Torture. Because the agency ordered Fraihat’s removal on



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the ground that he committed an aggravated felony, our review is limited by 8

U.S.C. § 1252(a)(2)(C). We dismiss the petition in part for lack of jurisdiction, and

otherwise deny the petition.

      1.     Fraihat challenges the agency’s determinations that his 2001

conviction under California Health & Safety Code § 11379.6(a) is an aggravated

felony and a particularly serious crime.

      Because we “do not have jurisdiction to review unexhausted claims,” we

dismiss Fraihat’s challenge for lack of jurisdiction. Rodriguez-Castellon v. Holder,

733 F.3d 847, 852 (9th Cir. 2013). Fraihat’s briefing to the Board did not address

whether the section 11379.6(a) conviction is an aggravated felony. Moreover, he

conceded that the section 11379.6(a) conviction “appears” to be a “per se

particularly serious crime.” The Board was “entitled to look to [Fraihat’s] brief for

an explication” of which issues he was challenging. Alanniz v. Barr, 924 F.3d

1061, 1069 (9th Cir. 2019). Because Fraihat did not challenge the immigration

judge’s finding, the Board correctly concluded that “on appeal, those issues [were]

waived.”

      The Board’s reference to Matter of Burbano, 20 I. & N. Dec. 872 (BIA

1994), does not change our analysis. Generally, “when the BIA cites Burbano in its

decision, all issues presented before the IJ are deemed to have been presented to

the BIA.” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008). But


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a Burbano citation does not always mean that the Board adopted and affirmed the

immigration judge’s decision in full. Instead, “the BIA can and should specifically

state that it is . . . limiting its opinion” if it adopts and affirms only some parts of an

immigration judge’s decision. Abebe v. Gonzalez, 432 F.3d 1037, 1040–41 (9th

Cir. 2005) (en banc). Because the Board specifically concluded that Fraihat waived

his challenges to the section 11379.6(a) conviction and the Board did not otherwise

address those arguments on the merits, Fraihat did not exhaust his claims.

       We are similarly unconvinced that any intervening changes in law excuse

Fraihat’s failure to exhaust. We “do not require an alien to exhaust administrative

remedies on legal issues based on events that occur after the briefing to the BIA

has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004). This

exception applies when the Board, “bound by our prior precedent[,] would be

precluded from granting relief.” Alvarado v. Holder, 759 F.3d 1121, 1129 (9th Cir.

2014). Fraihat identifies no binding authority that would satisfy the exception.

       Fraihat also challenges the agency’s determinations that his conviction under

California Health & Safety Code § 11378 is an aggravated felony and a

particularly serious crime. Fraihat did exhaust these challenges. But because

Fraihat is removable and ineligible for asylum and withholding on the basis of his

conviction under section 11379.6(a) alone, we need not address them.

       2.     Despite the agency’s determinations that Fraihat committed an


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aggravated felony and particularly serious crime, Fraihat may still be eligible for

deferral of removal under the Convention Against Torture. 8 C.F.R. § 208.17. The

government concedes that pending the Supreme Court’s resolution of Nasrallah v.

U.S. Attorney General, 762 F. App’x 638, 640 (11th Cir. 2019), cert. granted sub

nom. Nasrallah v. Barr, No. 18-1432, 2019 WL 5281287 (U.S. Oct. 18, 2019), we

have jurisdiction to review Fraihat’s deferral claim. See Eneh v. Holder, 601 F.3d

943, 946 (9th Cir. 2010). We deny Fraihat’s petition for review of the Board’s

denial of deferral of removal.

      The record does not compel the conclusion that it is “more likely than not

that [Fraihat] would be tortured if removed” to Jordan. 8 C.F.R. § 208.16(c)(2). In

particular, Fraihat does not show that he will be subject to torture “inflicted by or

at the instigation of or with the consent or acquiescence” of the Jordanian

government. Eneh, 601 F.3d at 947 (quoting 8 C.F.R. § 1208.18(a)(1)). Fraihat

testified that he received an email “from ISIS” threatening to “burn him alive” if he

returned to Jordan, and he testified in earlier proceedings that his cousins told him

that “if he ever comes back [to Jordan] that he will be killed.” Substantial evidence

supports the agency’s finding that, at most, this evidence shows a possibility of

torture by private actors without the acquiescence or involvement of the Jordanian

government. Fraihat also presents country conditions evidence showing that torture

occurs in Jordanian prisons, but even if such evidence was properly before the


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agency, substantial evidence supports the agency’s alternative findings that Fraihat

did not demonstrate a particularized likelihood that he will be imprisoned by the

Jordanian government—much less face torture—if removed to Jordan.

      PETITION DISMISSED IN PART and DENIED IN PART.




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