FILED
NOT FOR PUBLICATION
APR 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MAURICIO OVIEDO- No. 12-74099
ALVARADO,
Agency No. A073-406-828
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 28, 2016**
San Francisco, California
Before: PAEZ, CLIFTON, and OWENS, Circuit Judges.
Petitioner Jose Mauricio Oviedo-Alvarado petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his applications for asylum, relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Immigration and Nationality Act, and protection under the Convention Against
Torture. As the parties are familiar with the facts, we do not recount them here.
We deny the petition for review.
Oviedo-Alvarado argues that the BIA erred by concluding that his
conviction for arson in violation of California Penal Code § 451(b) was
categorically an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43)(F).
However, this argument is irrelevant because the BIA ultimately relied on the
different ground that his arson conviction was a “particularly serious crime.” See
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing
the decision of the BIA, we consider only the grounds relied upon by that agency.”
(citation omitted)). Moreover, Oviedo-Alvarado did not challenge the IJ’s
conclusion that his arson conviction was a “particularly serious crime” before this
court or the BIA. See Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008)
(stating that court of appeal “will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening brief” (citation
omitted)); Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008) (explaining that
failure to exhaust administrative remedies deprives this court of jurisdiction to hear
an appeal from the BIA).
2
Contrary to Oviedo-Alvarado’s contention, the BIA did not act beyond the
scope of our remand order by concluding that Oviedo-Alvarado was ineligible for
relief under a different statutory bar. See United States v. Kellington, 217 F.3d
1084, 1092 (9th Cir. 2000) (stating that “although lower courts are obliged to
execute the terms of a mandate, they are free as to ‘anything not foreclosed by the
mandate’” (citation omitted)).
Finally, Oviedo-Alvarado has waived any matters “not specifically and
distinctly argued” in his opening brief, including the BIA’s denial of his motion to
remand to apply for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act of 1997. Husyev, 528 F.3d at 1183
(citation omitted).
PETITION FOR REVIEW DENIED.
3