NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL EFRAIN PERALTA ESTRADA, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 19-72811 

Agency No. A099-826-431 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Miguel Efrain Peralta Estrada, a native and citizen of Mexico, petitions pro 

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his 

appeal from an immigration judge’s (“IJ”) decision denying his application for 

asylum, withholding of removal, and relief under the Convention Against Torture

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAR 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-72811 

(“CAT”), and the BIA’s order denying his motion to terminate proceedings. Our 

jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence 

the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th 

Cir. 2014). We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 

1037, 1042 (9th Cir. 2016). We dismiss in part, deny in part, grant in part, and we 

remand the petition for review.

We lack jurisdiction over Peralta Estrada’s contention that the IJ failed to 

serve as an impartial adjudicator because he did not raise this claim before the 

BIA. See De Mercado v. Mukasey, 566 F.3d 810, 815 n.4 (9th Cir. 2009) 

(concluding the court lacked jurisdiction to review petitioner’s claim that the IJ 

failed to serve as an impartial adjudicator and denied petitioner a full and fair 

hearing because it was not raised to the BIA). 

In his opening brief, Peralta Estrada does not raise any challenge to the 

BIA’s denial of his motion to terminate or the BIA’s determination that his 

conviction for possession with intent to distribute marijuana under 8 U.S.C. 

§§ 841(a)(1), (b)(1)(B)(vii) was a particularly serious crime, barring him from 

asylum and withholding of removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 

1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s 

opening brief are waived). Thus, Peralta Estrada’s asylum and withholding of 

removal claims fail.
3 19-72811 

As to deferral of removal under CAT, the agency misstated Peralta Estrada’s 

testimony as to the police officers’ conduct in failing to protect him. Specifically, 

the IJ’s findings that “there is no indication whatsoever that the Mexican police . . . 

in any way have not taken any actions to protect [Peralta Estrada]” and that the 

police “have done nothing to indicate that they would in any way shirk their duties 

to protect [Peralta Estrada] if he were to go to Mexico” are contrary to the record 

of testimony. Peralta Estrada testified that the police who witnessed his cousins

assault him “did not do anything” to assist him and instead were there “taking care 

of [his] cousins” who worked for the cartel. Peralta Estrada further testified that 

police told him “they were not able to do anything” when he submitted a police 

report regarding the beating. The IJ did not make an explicit adverse credibility 

finding, and the BIA adopted and affirmed the IJ’s decision under Matter of 

Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Thus, the agency failed to 

consider all relevant evidence. See Parada v. Sessions, 902 F.3d 901, 915-16 (9th 

Cir. 2018) (remanding where “the agency erred by failing to consider all relevant 

evidence” as to CAT relief); Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011) 

(indications of the agency’s failure to properly consider all of the relevant evidence 

“include misstating the record”). 

Apart from these findings, it is unclear why the BIA denied Peralta Estrada’s 

CAT claim. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (BIA 
4 19-72811 

must provide a reasoned explanation for its actions). Thus, we grant the petition 

for review and remand Peralta Estrada’s CAT claim to the BIA for further 

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam). 

Peralta Estrada’s removal is stayed pending a decision by the Board of 

Immigration Appeals.

The parties shall bear their own costs on appeal.

PETITION FOR REVIEW DISMISSED in part; DENIED in part; 

GRANTED in part; REMANDED.