VILLARREAL MARTINEZ v. SESSIONS III (2018)

MEMORANDUM **

Enrique Reyes Villarreal-Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny the petition for review.

Villarreal-Martinez does not raise, and therefore waives, any challenge to the agency’s determination that he is ineligible for CAT relief, or to its fact-based determination that his conviction for burglary of a habitation under Texas Penal Code (“TPC”) § 30.02(c)(2) is a particularly serious crime, rendering him ineligible for withholding of removal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically argued in an opening brief are waived).

Villarreal-Martinez’s general contention that only an aggravated felony can be a particularly serious crime is foreclosed by Delgado v. Holder, 648 F.3d 1095, 1102 (9th Cir. 2011) (en banc). To the extent he contends that the interpretation of the particularly serious crime bar in Delgado v. Holder is overbroad, a three-judge panel cannot overrule circuit precedent in the absence of an intervening decision from a higher court. See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011).

We need not reach Villarreal-Martinez’s contention that his conviction under TPC § 30.02(c)(2) is not an aggravated felony. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to reach non-dispositive issues).

Villarreal-Martinez’s request to hold the case in abeyance pending the Supreme Court’s decision reviewing Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) is denied as moot, where a decision has since issued in Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018).

PETITION FOR REVIEW DENIED.