Shakhbazyan v. Ashcroft , 22 F. App'x 883 ( 2001 )

MEMORANDUM ^***

Akop Shakhbazyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order issued on the grounds that Shakhbazyan is an alien convicted of an aggravated felony. The permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply to this case because removal proceedings were initiated against Shakh-bazyan after April 1, 1997. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We have jurisdiction to consider whether Shakhbazyan has committed a deportable offense, but must dismiss his petition for lack of jurisdiction if we conclude that he has. See Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000). We dismiss.

Shakhbazyan does not dispute that his conviction for second degree robbery under CaLPenal Code § 211 constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(F), (G). Because Shakhbaz-yan was convicted of an aggravated felony after admission to the United States, this court lacks jurisdiction to review the order of removal. See Flores-Miramontes, 212 F.3d at 1135.

Shakhbazyan may, however, pursue his constitutional claims and may pursue his claim for discretionary relief by way of a habeas corpus proceeding. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001) (stating that “§ 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect”); FloresMiramontes, 212 F.3d at 1136 (indicating that petitioner may raise constitutional challenges in a federal habeas proceeding).

We stay the mandate for an additional 30 days to allow Shakhbazyan to file a habeas corpus petition in district court under 28 U.S.C. § 2241.

PETITION DISMISSED; MANDATE STAYED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.