Opinion
No. 04-75891.
Argued and Submitted October 8, 2009.
Filed October 20, 2009.
Michael T. Purcell, Portland, OR, for Petitioner.
Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Barry J. Pettinato, Jonathan Aaron Robbins, Esquire, Trial, U.S. Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-638-137.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Alfredo Rolando Fajardo-Alvarez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").
As a general rule, we lack jurisdiction to review a final order of removal again an alien who has committed a controlled substance offense. See 8 U.S.C. § 1252(a)(2)(C). However, the BIA did not find Fajardo-Alvarez removable for having been convicted of a controlled substance offense. Instead, the BIA found him ineligible for asylum, withholding of removal, and CAT on the merits. Because the BIA did not; order Fajardo-Alvarez removed based upon his offense and made a determination on the merits, we have jurisdiction to review the decision. See Unuakhulu v. Gonzales, 416 F.3d 931, 936-37 (9th Cir. 2005).
However, we lack jurisdiction to consider this petition on the merits. Fajardo-Alvarez failed to exhaust the critical issue of credibility in his appeal to the BIA, notwithstanding the IJ's clear and unambiguous findings regarding adverse credibility. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore have no basis to consider Fajardo-Alvarez's claims for asylum, withholding of removal, or CAT. See Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004) (holding that petitioner's failure to exhaust the adverse credibility finding precluded this court from having jurisdiction to consider her claims of asylum, withholding of removal, and CAT).