Robert Small v. Eric Holder, Jr.

588 F. App'x 722

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 23, 2014
• Docket: 12-74122
• Status: Unpublished

Opinion

MEMORANDUM **

Robert Small, a native of Jamaica, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order terminating his previously granted withholding of removal and denying his application for deferral of removal under the Convention Against Torture (“CAT”). This Court has jurisdiction to review constitutional claims and questions of law raised by Small in his petition for review. See 8 U.S.C. § 1252(a)(2)(D).

Small argues that his withholding of removal was improperly terminated under 8 C.F.R. § 1208.24(b)(3). Specifically, Small argues that the IJ and BIA impermissibly aggregated the prison sentences of his convictions that were committed before he was granted withholding of removal in 2001 with those committed after the grant.

As an initial matter, we conclude that Small exhausted this argument with the BIA. This Court construes pro se claims “liberally for purposes of the exhaustion requirement.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.2008). Small raised the argument that his withholding of removal was improperly terminated in his brief to the BIA. His' assertions were sufficient to put the BIA on notice that this issue was in front of it, particularly under the “forgiving standard!]” used to review pro se appeals. Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir.2011); see also Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n. 1 (9th Cir.2007) (holding a petitioner’s “failure to elaborate on his general contention with a specific statutory argument” to be “immaterial for jurisdiction purposes”).

However, the BIA did not address this argument. Under the “ordinary remand rule,” “we are not permitted to decide a claim that the immigration court has not considered in the first instance.” Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007) (citing INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)).

Accordingly, we GRANT Small’s petition for review in part, as to his claim that his grant of withholding of removal was improperly terminated, and REMAND this issue to the BIA so that it may consider Small’s claim in the first instance. 1

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . We do not reach the remaining issues raised in Small’s petition for review. He is free to re-raise those issues in a subsequent petition for review after the BIA adjudicates his withholding of removal claim if it results in a final order of removal.