Alazar Arsdi v. Eric Holder, Jr.
FILED OPINION (ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN and CARLOS T. BEA) DISMISSED. Judge: DFO Authoring, . FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAZAR GETACHEW ARSDI,
ERIC H. HOLDER JR., Attorney
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 9, 2011—San Francisco, California
Filed October 24, 2011
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
ARSDI v. HOLDER
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Evangeline G. Abriel, Santa Clara University School of Law,
Santa Clara, California, argued the cause and filed the briefs
for the petitioner. With her on the briefs were Neil Banerjee
and Maria M. Ciurea, Santa Clara University School of Law,
Santa Clara, California.
Aaron R. Petty, United States Department of Justice Office of
Immigration Litigation, Washington, D.C., argued the cause
and filed the brief for the respondent. With him on the brief
were Tony West and Christopher C. Fuller, Department of
Justice Civil Division, Washington, D.C.
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether an alien exhausted
his administrative remedies in challenging an immigration
judge’s ruling that he had committed a “particularly serious
crime” and therefore was subject to removal from the United
Alazar Getachew Arsdi is a native and citizen of Ethiopia,
who came to the United States with his mother in 2002 at age
fourteen and who became a legal permanent resident in 2005.
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ARSDI v. HOLDER
On February 17, 2006, the seventeen-year-old Arsdi and a
school friend robbed Pedro Cervantes and Jesus Lugo at gun
point at a local gas station. Arsdi tried to downplay his role
during immigration proceedings, but he admitted that he
drove the car, held the gun, and collected the spoils. Fortunately, no one was hurt, and Cervantes was able to provide
the police with a description both of his attackers and of their
vehicle. The teenagers were apprehended before they disposed of the shotgun or Lugo’s ATM card.
Although Arsdi was underage and a first-time offender, the
state of Arizona charged him as an adult with armed robbery,
a Class 2 felony with a presumptive punishment of five years
incarceration. Faced with overwhelming evidence, Arsdi pled
guilty. In a show of leniency, the state court sentenced Arsdi
to only four years imprisonment, the statutory minimum.
On July 24, 2009, the Department of Homeland Security
issued a Notice to Appear, charging Arsdi as removable based
on his conviction of an aggravated felony. While represented
by counsel, Arsdi conceded removability but applied for asylum and withholding of removal.1 The immigration judge
(“IJ”) concluded that because his armed robbery was “particularly serious,” Arsdi was statutorily ineligible for such relief.
Arsdi complained to the Board of Immigration Appeals
(“BIA”) that the “decision by the [IJ denying him relief]
failed to take into consideration several facts.” However, all
of the purported omissions related to Arsdi’s claim of a wellfounded fear of persecution. Not one pertained to whether
pointing a pump action shotgun into the faces of two innocent
people constitutes a “particularly serious” crime. Concluding
that the IJ “considered the testimony and record in full, and
did not overlook any evidence,” the BIA adopted the IJ’s
Arsdi also filed for deferral of removal under the United Nations Convention Against Torture. His appeal regarding that claim is handled in a
concurrently filed memorandum disposition.
ARSDI v. HOLDER
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In timely petitioning for review of the BIA decision here,
Arsdi asserts that the IJ failed to apply the appropriate standard to determine whether his crime was “particularly serious.” The government objects that we may not properly
consider such a claim because Arsdi failed to raise it before
 Our jurisdiction to hear Arsdi’s claim is subject to the
strict limits placed by Congress in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (1996), and the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). As such, we
have jurisdiction to review only if he “has exhausted all
administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). If Arsdi did not exhaust his claim that
the IJ applied the wrong standard to determine whether his
crime was “particularly serious,” we simply may not review
that decision here.
 As we have often reiterated, “[i]t is a well-known
axiom of administrative law that ‘if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper
administrative forum.’ ” Barron v. Ashcroft, 358 F.3d 674,
677 (9th Cir. 2004) (quoting Tejeda-Mata v. INS, 626 F.2d
721, 726 (9th Cir. 1980)). In examining whether the petitioner
has met this requirement, we give due “ ‘regard for the particular administrative scheme at issue.’ ” Id. (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). This rule “prevent[s]
premature interference with agency processes, so that the
agency may function efficiently and so that it may have an
opportunity to correct its own errors.” Weinberger, 422 U.S.
 In this administrative scheme, an alien must first appeal
any purported errors by the IJ to the BIA, the body to which
consistent application of immigration law is primarily
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ARSDI v. HOLDER
entrusted. See 8 C.F.R. § 1003.1(b). We have repeatedly “held
that ‘failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the
matter.’ ” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004)
(quoting Vargas v. U.S. Dep’t of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987)).
Indeed, Arsdi did appeal to the BIA. Taking the view of his
arguments most likely to give us jurisdiction, he made only a
general allegation that the IJ erred in denying him relief.
However, an alien “cannot satisfy the exhaustion requirement
by making a general challenge to the IJ’s decision, but, rather,
must specify which issues form the basis of the appeal.” Id.
(citing Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir.
2000); Mabugat v. INS, 937 F.2d 426, 430 (9th Cir. 1991)).
 Taking a more realistic view of his claims, Arsdi raised
issues completely unrelated to his current contention. An alien
need not use precise legal terminology to exhaust his claim.
Agyeman v. INS, 296 F.3d 871, 877-78 (9th Cir. 2002). Nor
must he provide a well developed argument to support his
claim, but he must put “the issue . . . before the BIA such that
it had the opportunity to correct its error.” Figueroa v.
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008).
Arsdi failed to meet even these minimum requirements. He
admitted the facts of his crime and conceded that armed robbery is an aggravated felony under Arizona and federal law.
See Ariz. Rev. Stat. § 13-1904; 8 U.S.C. § 1101(a)(43) (defining an “aggravated felony” to include, among other things,
either a “crime of violence”2 for which the term of imprison2
A “crime of violence” is defined as either “an offense that has as an
element the use, attempted use, or threatened use of physical force against
the person or property of another,” or “any other offense that is a felony
and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 16.
ARSDI v. HOLDER
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ment is at least one year or a “theft offense” for which the
term of imprisonment is at least one year). This concession
not only rendered Arsdi removable, 8 U.S.C.
§ 1227(a)(2)(A)(iii), it automatically made him ineligible for
asylum. Id. § 1158(b)(2)(B)(i) (“[A]n alien who has been convicted of an aggravated felony shall be considered to have
been convicted of a particularly serious crime.”). If Arsdi had
received the presumptive five year sentence for his crime, see
Ariz. Rev. Stat. § 13-702, this concession would also have
made him automatically ineligible for withholding of
removal. 8 U.S.C. § 1231(b)(3)(B) (defining any aggravated
felony with a sentence of more than five years imprisonment
as “particularly serious”). But rather than even attempting to
argue that this lesser sentence somehow made his crime not
“particularly serious,” he argued completely different objections to the IJ.
 Put simply, Arsdi did not “put the BIA on notice,”
Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per
curiam), that he took issue with the IJ’s analysis regarding
whether his armed robbery was a “particularly serious” crime.
As a result, the BIA had no “opportunity to pass on this
Of course, if an alien raises an issue to the IJ, and the BIA
“elect[s] to consider [it] on its substantive merits” despite a
procedural default by the alien, the alien is deemed to have
exhausted the claim. Abebe v. Gonzales, 432 F.3d 1037, 1041
(9th Cir. 2005) (en banc) (when the BIA adopts the IJ’s decision citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA
1994), it adopts the reasoning as well). Similarly, if the IJ’s
decision was facially premised on an incorrect factual finding
or legal conclusion, and the BIA nonetheless adopted the
decision, we will also deem the alien to have exhausted the
claim. Figueroa, 543 F.3d at 493; see also Mutuku v. Holder,
600 F.3d 1210, 1213 (9th Cir. 2010). Under such circumstances, the agency “had a full opportunity to resolve the controversy or correct its own errors before judicial intervention.”
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ARSDI v. HOLDER
Figueroa, 543 F.3d at 493 (internal quotation marks and
emphasis omitted). Furthermore, the “BIA is presumably
aware of its ability to decline to review an argument when a
petitioner has not properly raised the argument on appeal to
the BIA.” Abebe, 432 F.3d at 1041.
But that was not the case here. The BIA did not “explicitly
discuss[ ],” id., whether Arsdi was convicted of a “particularly
serious crime.” Nor does Arsdi claim that the IJ’s decision
contains a facially invalid statement of law or fact. Rather,
Arsdi merely challenged the IJ’s application of the Frentescu
factors in concluding that he was ineligible for relief. Matter
of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).3
 This was not enough. The only way to give the agency
the “opportunity to correct its own errors,” Weinberger, 422
U.S. at 765, was to raise the “particularly serious” issue
before the BIA, which he simply failed to do.4
 Because Arsdi did not exhaust the issue before the
BIA, we have no jurisdiction to consider whether or not his
crime is “particularly serious.” His petition for review as to
this claim is DISMISSED.
Because Arsdi’s conviction of a “particularly serious crime” renders
him ineligible for either asylum or withholding, 8 U.S.C.
§§ 1158(b)(2)(B)(I), 1231(b)(3)(B), we do not reach any other potential
error the IJ may have made in denying relief.
As the government points out, an alien may also move for reconsideration or reopening of the IJ’s decision. See 8 U.S.C. § 1229a(c)(6)-(7).
Because these motions are not remedies available to the alien, as “of
right,” an alien need not use them in order to exhaust his claim. 8 U.S.C.
§ 1252(d)(1). However, these multifarious methods of review highlight the
import Congress placed on allowing the agency to correct its own mistakes prior to interference by the federal courts.
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