NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 15 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE REYES VILLARREAL- No. 16-71239

MARTINEZ,

Agency No. A091-231-340 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

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

* 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). Accordingly, Villarreal- Martinez’s request for oral argument is denied. 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).

2 16-71239 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,

138 S. Ct. 1204 (2018).

PETITION FOR REVIEW DENIED.

3 16-71239