                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MIKHAIL G. PECHENKOV ,                   No. 08-73287
                         Petitioner,
                                         Agency No.
                v.                      A072-142-992

ERIC H. HOLDER, JR., Attorney
General,                                   OPINION
                        Respondent.


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

                 Argued and Submitted
       April 17, 2012–San Francisco, California

               Filed December 3, 2012

 Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
         and Susan P. Graber, Circuit Judges.

              Opinion by Judge Graber;
             Concurrence by Judge Graber
2                    PECHENKOV V . HOLDER

                           SUMMARY*


                           Immigration

    The panel dismissed in part and denied in part Mikhail G.
Pechenkov’s petition for review of the Board of Immigration
Appeals’ denial of withholding of removal and adjustment of
status.

    The panel held that it lacked jurisdiction pursuant to
8 U.S.C. § 1252(a)(2)(C) over Pechenkov’s challenge to the
discretionary determination finding him ineligible for
withholding because the crime underlying his removability
was a “particularly serious crime.” The panel upheld the
revocation of Pechenkov’s asylee status pursuant to 8 C.F.R.
§ 208.24(a)(2), also due to his conviction, and denied
Pechenkov’s constitutional challenge to the provisions
precluding adjustment of status after his asylee status was
revoked.

    Judge Graber, concurring, agreed that in this case the
court lacks jurisdiction to review the BIA's "particularly
serious crime" determination, but wrote separately to urge the
court to consider revisiting, in an appropriate case, what she
believes is an erroneous reading of § 1252(a)(2)(C). Judge
Graber wrote that this court alone has created an
"on-the-merits" exception, allowing review of a merits-based
denial of relief, as opposed to a denial based on ineligibility
due to a criminal conviction. She would rather simply inquire
as to whether an alien is charged with removability because

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   PECHENKOV V . HOLDER                       3

of a relevant crime and whether the IJ correctly sustained the
charge, and find that if so, the court lacks jurisdiction over
questions not covered by § 1252(a)(2)(D).


                         COUNSEL

Frank P. Sprouls, Law Office of Ricci & Sprouls, San
Francisco, California, for Petitioner.

Lance Lomond Jolley, Trial Attorney, and Cindy S. Ferrier,
Senior Litigation Counsel, Office of Immigration Litigation,
Washington, D.C., for Respondent.


                          OPINION

GRABER, Circuit Judge:

    Petitioner Mikhail G. Pechenkov seeks review of a
decision of the Board of Immigration Appeals (“BIA”)
adopting and affirming an immigration judge’s (“IJ”) denial
of his application for withholding of removal. Petitioner
argues that the BIA abused its discretion in ruling that he was
ineligible for withholding of removal because he had been
convicted of a “particularly serious crime” within the
meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). Petitioner also
raises a constitutional challenge to the legal provisions
precluding adjustment of his immigration status. He argues
that he is eligible for adjustment of status because his asylee
status was revoked improperly, under a regulation that
purportedly contradicts relevant statutory authority. We
dismiss, for lack of jurisdiction, Petitioner’s challenge to the
4                    PECHENKOV V . HOLDER

“particularly serious crime” determination, and we deny his
petition with regard to the application to adjust status.

    Petitioner, a native and citizen of Russia, was admitted to
the United States in 1992. He filed an application for asylum,
which was granted. After he obtained asylee status,
Petitioner was convicted of felony assault with a deadly
weapon or force likely to produce great bodily injury, in
violation of California Penal Code section 245(a)(1) (1993);
his penalty included a suspended sentence of three years,
felony probation for three years, 248 days in jail, and
restitution.

    After his conviction, Petitioner filed an application,
pursuant to 8 U.S.C. § 1159(b), to adjust his status to that of
a lawful permanent resident. That application was denied
because, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), conviction of
a crime involving “moral turpitude” renders an alien
inadmissible. In denying the application, the immigration
authority1 also expressly determined that Petitioner was not
entitled to a waiver under 8 U.S.C. § 1159(c), which allows
waiver of certain bars to admissibility “for humanitarian
purposes, to assure family unity, or when it is otherwise in the
public interest.”

   Petitioner’s asylee status was later revoked pursuant to
8 C.F.R. § 208.24(a), because he was no longer eligible for


    1
    W e use the term “immigration authority” to avoid confusion arising
from the federal government’s reorganization of immigration agencies
during the pendency of this case. See generally United States v. Juvenile
Female, 566 F.3d 943, 949 (9th Cir. 2009) (describing the “dissolution of
the Immigration and Naturalization Service (‘INS’), and the creation of
the Department of Homeland Security (‘DHS’)”).
                     PECHENKOV V . HOLDER                             5

asylum after his conviction. Soon after revoking Petitioner’s
asylee status, the immigration authority commenced removal
proceedings against him. The Notice to Appear alleged that
Petitioner had, after being admitted as a crewman, remained
in the United States longer than permitted, making him
removable under 8 U.S.C. § 1227(a)(1)(B).

    Petitioner then applied for withholding of removal, relief
that is one of the two subjects of this petition for review.2 In
2000, Petitioner filed a new application to adjust his status,
including an application for waiver of inadmissibility. That
application is the other subject of this petition.

    At a hearing in early 1999, Petitioner admitted the factual
allegations in his Notice to Appear and conceded his
removability. In 2005, the government added an additional
basis of removability, arguing that Petitioner’s conviction
was for an aggravated felony, making him removable under
8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner contested the
additional basis of removability, but the IJ sustained the
charge, finding expressly that Petitioner’s conviction
qualified as an aggravated felony.

    In addressing Petitioner’s withholding of removal
application, the IJ noted that 8 U.S.C. § 1231(b)(3), which
provides for withholding of removal, does not apply to an
alien who, “having been convicted by a final judgment of a
particularly serious crime[,] is a danger to the community.”3


 2
  Petitioner also applied for asylum and protection under the Convention
Against Torture, but he no longer seeks those forms of relief here.

     3
        For the purposes of withholding of removal, 8 U.S.C.
§ 1231(b)(3)(B)(iv) states that
6                   PECHENKOV V . HOLDER

After considering and weighing several factors, the IJ
determined that Petitioner’s crime qualified as a “particularly
serious crime” and that Petitioner was a danger to the
community. For that reason, the IJ denied withholding of
removal.

    Regarding the adjustment of status application, the
government argued that Petitioner was ineligible to apply for
such relief after his asylee status had been revoked. In
response, Petitioner filed a short brief that the IJ construed as
conceding ineligibility for adjustment of status. Nevertheless,
Petitioner continued to argue that the revocation of his asylee
status was constitutionally defective. Regarding that
argument, the IJ’s final decision notes a lack of “jurisdiction
to review the termination of the [Petitioner’s] asylum status.”

   Petitioner appealed to the BIA, which adopted the IJ’s
opinion. Petitioner’s brief to the BIA did not challenge the
aggravated felony finding or that ground of removability.

     In adopting the IJ’s opinion, the BIA reiterated that
Petitioner was ineligible for withholding of removal because
he had been convicted of a particularly serious crime. With
respect to the application to adjust status, the BIA noted that
it lacked jurisdiction to consider Petitioner’s constitutional


        an alien who has been convicted of an aggravated
        felony (or felonies) for which the alien has been
        sentenced to an aggregate term of imprisonment of at
        least 5 years shall be considered to have committed a
        particularly serious crime. The previous sentence shall
        not preclude the Attorney General from determining
        that, notwithstanding the length of sentence imposed,
        an alien has been convicted of a particularly serious
        crime.
                   PECHENKOV V . HOLDER                         7

arguments regarding the revocation of his asylee status.
Petitioner timely seeks review, challenging (1) the BIA’s
evaluation of the factors supporting the “particularly serious
crime” finding that precluded withholding and (2) the
constitutionality of the regulation under which his asylee
status was revoked. Petitioner does not dispute that he is
removable for having been convicted of an aggravated felony.

    At the outset, the government asserts that we lack
jurisdiction over this petition, citing the jurisdiction-stripping
provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 306, 110
Stat. 3009-546, 3009-607.              Specifically, 8 U.S.C.
§ 1252(a)(2)(C) provides:

            Notwithstanding any other provision of
        law (statutory or nonstatutory), . . . and except
        as provided in subparagraph (D), no court
        shall have jurisdiction to review any final
        order of removal against an alien who is
        removable by reason of having committed
        [among other crimes, an aggravated felony].

(Emphasis added.) But subparagraph (D) of that same statute
provides:

            Nothing in subparagraph . . . (C) . . . shall
        be construed as precluding review of
        constitutional claims or questions of law
        raised upon a petition for review filed with an
        appropriate court of appeals in accordance
        with this section.
8                     PECHENKOV V . HOLDER

Subparagraph (D), added by the REAL ID Act of 2005,
restored our jurisdiction over “constitutional claims or
questions of law,” even in cases involving aggravated felons.4
See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)
(per curiam) (internal quotation marks omitted). We have
described the cumulative effect of those two statutes as
follows:

         With respect to asylum, withholding of
         removal, and CAT claims of a petitioner who
         was convicted of an offense covered by
         § 1252(a)(2)(C), we have jurisdiction to
         review the denial of an asylum application
         and to review the denial of withholding of
         removal and CAT relief when a petitioner
         raises questions of law, including mixed
         questions of law and fact, or constitutional
         claims. Morales v. Gonzales, 478 F.3d 972,
         978–80 (9th Cir. 2007)[, abrogated on other
         grounds by Anaya-Ortiz v. Holder, 594 F.3d
         673, 678 (9th Cir. 2010)]. Moreover, as to
         “factual issues, when an IJ does not rely on an
         alien’s conviction in denying CAT relief and
         instead denies relief on the merits, none of the
         jurisdiction-stripping provisions . . . apply to
         divest this court of jurisdiction.” Id. at 980;



    4
    The REAL ID Act was enacted May 11, 2005, but the jurisdiction-
restoring provision applies to cases, such as this one, “in which the final
administrative order of removal, deportation, or exclusion was issued
before, on, or after the date of the enactment of this division.” REAL ID
Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 311; accord
Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010) (order).
                  PECHENKOV V . HOLDER                       9

       see also Arteaga v. Mukasey, 511 F.3d 940,
       942 n.1 (9th Cir. 2007).

Brezilien v. Holder, 569 F.3d 403, 410 (9th Cir. 2009)
(ellipsis in original).

    That is, § 1252(a)(2)(C)’s jurisdictional bar is subject to
two exceptions.      The first exception in the quoted
text—relating to questions of law or constitutional claims—is
an application of § 1252(a)(2)(D). See Morales, 478 F.3d at
978. The second exception applies only when, as stated
above, an IJ denies relief on the merits, for failure to
demonstrate the requisite factual grounds for relief, rather
than in reliance on the conviction. See Lemus-Galvan v.
Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (“If an IJ
determines that an aggravated felony constitutes a
‘particularly serious crime,’ and denies withholding of
removal under the CAT on the basis of the conviction,
§ 1252(a)(2)(C) bars our review of the denial of
withholding.” (citing Unuakhaulu v. Gonzales, 416 F.3d 931,
937 (9th Cir. 2005))).

    As noted, Petitioner does not challenge that he is
removable for having committed an aggravated felony, nor
did he raise such a challenge before the BIA. Thus, unless an
exception applies, we lack jurisdiction to review the denial of
withholding. No exception applies in this case. Recently, we
decided that a “particularly serious crime” determination is
inherently discretionary and is to be reviewed under the
abuse-of-discretion standard. Arbid v. Holder, No. 09-73211,
2012 WL 5458045, *2–3 (9th Cir. Nov. 9, 2012) (per
curiam). Thus, under Arbid, § 1252(a)(2)(D) cannot restore
jurisdiction to review a “particularly serious crime”
determination where, as here, the only challenge to that
10                PECHENKOV V . HOLDER

determination is that it incorrectly assessed the facts.
Petitioner has not raised a constitutional or legal question in
relation to the “particularly serious crime” determination;
instead, he asks for a re-weighing of the factors involved in
that discretionary determination. Petitioner’s opening brief
supports this characterization of his petition by framing the
issue this way: “The IJ and the BIA abused their discretion
in the ‘particularly serious crime’ analysis.” (Emphasis
added.)

    The second exception does not apply because the IJ in
Petitioner’s case did not address the merits of his withholding
claim. Instead, the IJ found Petitioner statutorily ineligible
for that relief because the crime underlying his removability
was particularly serious. Accordingly, we lack jurisdiction to
review the “particularly serious crime” determination.

    By contrast, we do have jurisdiction over Petitioner’s
constitutional arguments regarding his application to adjust
status and the revocation of his asylee status. Those
arguments raise constitutional claims and questions of law,
and so fall squarely within the ambit of § 1252(a)(2)(D).
“We review de novo the BIA’s conclusions on questions of
law . . . .” Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir.
2009).

    Petitioner concedes that his asylee status was revoked
pursuant to 8 C.F.R. § 208.24(a)(2), but argues that the
regulation is constitutionally defective for usurping or
misconstruing congressional authority. We disagree. That
regulation simply states that the immigration authority “may
terminate a grant of asylum” when “one or more of the
conditions described in [8 U.S.C. § 1158(c)(2)] exist.” Thus,
the challenged regulation, by its very terms, simply refers to
                  PECHENKOV V . HOLDER                      11

and incorporates the relevant statutory authority. Moreover,
the statute, § 1158(c)(2), explicitly allows termination of
asylum; in fact, the paragraph is titled “Termination of
asylum.” See Fla. Dep’t of Revenue v. Piccadilly Cafeterias,
Inc., 554 U.S. 33, 47 (2008) (“[S]tatutory titles and section
headings are tools available for the resolution of a doubt
about the meaning of a statute.” (internal quotation marks
omitted)). Petitioner does not and cannot dispute that his
conviction created one of the statutory conditions for
revocation of asylee status. Specifically, § 1158(c)(2)(A) and
(B) allow termination of asylum if the alien is no longer
eligible for asylum under § 1158(b), and § 1158(b)(2)(A)(ii)
and (B)(i) operate to deny asylum eligibility to an individual
who has been convicted of an aggravated felony.
Accordingly, it is beyond dispute that revocation of
Petitioner’s asylee status was consistent with congressional
intent.

   Petition DISMISSED in part and DENIED in part.



GRABER, Circuit Judge, concurring.

   I agree that we lack jurisdiction to review the BIA’s
"particularly serious crime" determination in this case. But
I write separately to express my disagreement with our
court’s interpretation of 8 U.S.C. § 1252(a)(2)(C).

    That statute provides: "no court shall have jurisdiction to
review any final order of removal against an alien who is
removable by reason of having committed" certain criminal
12                      PECHENKOV V . HOLDER

offenses, including aggravated felonies.1 (Emphasis added.)
In my view, once we are satisfied that a given alien has been
found "removable by reason of" conviction of a crime
covered by § 1252(a)(2)(C), we lack jurisdiction to conduct
further review of the "final order of removal," whether
relating to asylum, withholding of removal, or CAT relief. In
such cases, we have jurisdiction only over constitutional
claims or questions of law, pursuant to § 1252(a)(2)(D). At
least four of our sister circuits have adopted this textually
based view of § 1252(a)(2)(C)’s jurisdiction-stripping
provision. See, e.g., Constanza v. Holder, 647 F.3d 749,
753–54 (8th Cir. 2011) (per curiam); Saintha v. Mukasey,
516 F.3d 243, 249–51 (4th Cir. 2008); Conteh v. Gonzales,
461 F.3d 45, 62–63 (1st Cir. 2006); Alaka v. Att’y Gen. of
U.S., 456 F.3d 88, 102 & n.24 (3d Cir. 2006).

    Unfortunately, we have created an additional, sometimes
confusing, exception—what I will call the "on-the-merits"
exception—that allows us to review more generally an on-
the-merits denial of relief than when denial is predicated on
ineligibility because of a criminal conviction. That exception

 1
     In its entirety, 8 U.S.C. § 1252(a)(2)(C) states:

            Notwithstanding any other provision of law (statutory or
      nonstatutory), including section 2241 of Title 28, or any other
      habeas corpus provision, and sections 1361 and 1651 of such
      title, and except as provided in subparagraph (D), no court shall
      have jurisdiction to review any final order of removal against an
      alien who is removable by reason of having committed a
      criminal offense covered in section 1182(a)(2) or
      1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense
      covered by section 1227(a)(2)(A)(ii) of this title for which both
      predicate offenses are, without regard to their date of
      commission, otherwise covered by section 1227(a)(2)(A)(i) of
      this title.
                  PECHENKOV V . HOLDER                     13

appears limited to the Ninth Circuit and, in my view,
interprets § 1252(a)(2)(C) incorrectly. Because the exception
clearly does not apply to Petitioner, it ultimately is of no
consequence to the outcome here. Nevertheless, I provide the
following discussion in the hope that we may revisit our
precedents in the future, in a case in which the exception
affects the outcome.

    The "on-the-merits" exception rests on the "by reason of
having committed a criminal offense" portion of
§ 1252(a)(2)(C). In Unuakhaulu v. Gonzales, 416 F.3d 931,
936 (9th Cir. 2005), we stated: "Alvarez-Santos [v. INS,
332 F.3d 1245, 1247 (9th Cir. 2003),] holds that the ‘by
reason of’ language of § 1252(a)(2)(C) ‘strips [this court]
only of jurisdiction to review orders of removal predicated on
commission or admission of a crime, not orders of removal
not so predicated.’" In Alvarez-Santos, the alien was charged
as removable on two independent grounds, only one of which
was criminal and covered by § 1252(a)(2)(C). 332 F.3d at
1248. In that case, the IJ explicitly found that the alien had
not been convicted of a crime and so rejected that ground of
removability. Id. at 1249. That is, § 1252(a)(2)(C), by its
own terms, did not apply at all. In the circumstances,
Alvarez-Santos cannot be said to have created an "exception"
to that statute’s applicability.

    In Unuakhaulu, we took Alvarez-Santos a step further.
The alien in that case, like the one in Alvarez-Santos, was
charged as removable on two independent grounds, only one
of which was criminal and covered by § 1252(a)(2)(C).
Unuakhaulu, 416 F.3d at 933. But unlike in Alvarez-Santos,
the IJ in Unuakhaulu sustained both grounds of removability.
Id. Nevertheless, the IJ determined that the criminal offense
underlying removability was not a "particularly serious
14                 PECHENKOV V . HOLDER

crime," so the alien was not barred from eligibility for
withholding of removal or CAT relief. Id. at 933–34; see
also 8 U.S.C. § 1231(b)(3)(B)(ii) (withholding of removal not
available to alien who, "having been convicted by a final
judgment of a particularly serious crime[,] is a danger to the
community of the United States"). Accordingly, the IJ
considered the merits of those claims before denying relief.
Unuakhaulu 416 F.3d at 934. On review, we reasoned that,
because the IJ did not "explicitly" specify which ground of
removability supported the order of removal, and because the
denial of withholding and CAT relief was "on the merits"
rather than premised on ineligibility due to the criminal
conviction, § 1252(a)(2)(C) did not apply to strip jurisdiction.
Id. at 936–37. Thus, in Unuakhaulu, we created an exception
whereby an alien who is removable because of a
§ 1252(a)(2)(C) crime may still seek review in this court of
fact-based questions that are not covered by § 1252(a)(2)(D).

     We further explained that exception in Morales v.
Gonzales, 478 F.3d 972, 978–80 (9th Cir. 2007), abrogated
on other grounds by Anaya-Ortiz v. Holder, 594 F.3d 673,
678 (9th Cir. 2010), and in Arteaga v. Mukasey, 511 F.3d
940, 942 n.1 (9th Cir. 2007). Although those cases go no
farther than did Unuakhaulu, they contain statements that
could be read to suggest an even broader rule. In Morales,
we reiterated, correctly, that § 1252(a)(2)(D) restores
jurisdiction over questions of law and constitutional claims.
478 F.3d at 978 ("Although we lack jurisdiction to review the
IJ’s finding that [an alien] was removable, we have
jurisdiction . . . to review the IJ’s denial of [the alien]’s
application for withholding of removal to the extent that [the
alien] raises questions of law, including mixed questions of
law and fact, or constitutional claims." (emphasis added)
(citing 8 U.S.C. § 1252(a)(2)(D)). We had jurisdiction over
                  PECHENKOV V . HOLDER                      15

the withholding claim in Morales because that claim
presented "a question of law over which this court has
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D)." Id. at 980.
We had jurisdiction over the CAT claim both because that
claim involved a legal question, id. (discussing "proper legal
standard for CAT relief"), and because the facts of that case
were similar to those in Unuakhaulu, id. ("[W]hen an IJ does
not rely on an alien’s conviction in denying CAT relief and
instead denies relief on the merits, none of the
jurisdiction-stripping provisions apply to divest this court of
jurisdiction." (citations omitted)).

    Arteaga, on first read, seems to be broader, stating in a
footnote:

       The government’s argument that we lack
   jurisdiction to review the BIA’s rulings on the issues
   of withholding and CAT relief has been heard and
   rejected by this court. See Morales v. Gonzales,
   478 F.3d 972, 980 (9th Cir. 2007) (noting that the
   jurisdiction-stripping provisions of 8 U.S.C.
   § 1252(a)(2)(C) apply to removal orders, and not to
   applications for asylum, withholding of removal, or
   CAT relief); id. ("[A]s to our resolution of factual
   issues, when an IJ . . . denies [CAT] relief on the
   merits, none of the jurisdiction-stripping provisions
   apply[.]").

511 F.3d at 942 n.1 (alterations in original). But the text
associated with that footnote claims jurisdiction under
§ 1252(a)(2)(D), and the facts of that case involved an on-the-
merits denial of withholding and CAT relief. Id. at 943–44.
Thus, Arteaga is no broader than Morales.
16                PECHENKOV V . HOLDER

     In my view, Unuakhaulu and its progeny misread
§ 1252(a)(2)(C)’s "by reason of" phrase as applying to the
order of removal, limiting the jurisdictional bar to cases in
which the relevant conviction is the final reason for that
order. But § 1252(a)(2)(C) applies to any order of removal
"against an alien who is removable by reason of having
committed" a relevant crime. (Emphasis added.) Thus, the
only relevant question is whether an IJ has made a finding of
removability because of a relevant conviction. Under my
reading, then, the applicability of § 1252(a)(2)(C) is a
straightforward inquiry: Was the alien charged with
removability because of a relevant crime, and did the IJ
correctly sustain that charge? If so, we lack jurisdiction over
all questions not covered by § 1252(a)(2)(D).

    For these reasons, I urge the court to consider revisiting,
in an appropriate case, our mistaken reading of
§ 1252(a)(2)(C). We have strayed from the statute and, in the
process, seemingly created a circuit split.
