Bartolo Vivenzi-De La Cruz v. Eric Holder, Jr. , 593 F. App'x 689 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARTOLO GIOVANNI VIVENZI-DE No. 09-70526
LA CRUZ, AKA Bartolo Giovanni
Vivenzi, Agency No. A036-216-291
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2015
San Francisco California
Before: SCHROEDER and SILVERMAN, Circuit Judges, and HUCK, Senior
District Judge.**
Bartolo Giovanni Vivenzi-De La Cruz, a native and citizen of Colombia,
petitions for review of a final order of removal. Even though our jurisdiction is
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul C. Huck, Senior District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
limited because petitioner is removable for having committed aggravated felonies
and controlled substance violations, we have jurisdiction to consider the questions
of law raised by petitioner. 8 U.S.C. § 1252(a)(2)(D); Prakash v. Holder, 579 F.3d
1033, 1035 (9th Cir. 2009). We deny the petition for review.
We reject petitioner’s argument that the Board either failed to consider his
Convention Against Torture (“CAT”) deferral of removal claim or erred when it
held that petitioner had waived his claim in the first appeal. Because petitioner
filed appeal briefs with the Board, we look to the briefs, not the notices of appeal,
to determine whether petitioner exhausted his claims. Abebe v. Mukasey, 554 F.3d
1203, 1208 (9th Cir. 2009) (per curiam en banc). The first appeal brief merely
mentioned that petitioner had applied for CAT relief. The second appeal brief only
mentioned the reason for the asylum application in the context of a § 212(c) waiver
argument. It did not mention torture or CAT. Neither statement put the Board on
notice that petitioner was appealing the denial of CAT protection. See Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam) (holding that a CAT
claim was exhausted because the petitioner “explicitly mentioned in his brief to the
BIA that he was requesting reversal of the IJ's denial of relief under the
Convention Against Torture.”).
PETITION FOR REVIEW DENIED.
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