Fajardo-Alvarez

MEMORANDUM **

Alfredo Rolando Fajardo-Alvarez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immi *199 gration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).

As a general rule, we lack jurisdiction to review a final order of removal again an alien who has committed a controlled substance offense. See 8 U.S.C. § 1252 (a)(2)(C). However, the BIA did not find Fajardo-Alvarez removable for having been convicted of a controlled substance offense. Instead, the BIA found him ineligible for asylum, withholding of removal, and CAT on the merits. Because the BIA did not order Fajardo-Alvarez removed based upon his offense and made a determination on the merits, we have jurisdiction to review the decision. See Unuakhaulu v. Gonzales, 416 F.3d 931, 936-37 (9th Cir.2005).

However, we lack jurisdiction to consider this petition on the merits. Fajardo-Alvarez failed to exhaust the critical issue of credibility in his appeal to the BIA, notwithstanding the IJ’s clear and unambiguous findings regarding adverse credibility. See Barron…