De Avila-Barbosa v. Holder

FILED
NOT FOR PUBLICATION SEP 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIANO DE AVILA-BARBOSA, No. 05-73285
Petitioner, Agency No. A038-516-214
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Mariano De Avila-Barbosa, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review de novo questions of law and constitutional claims, Khan v.
Holder, 584 F.3d 773, 776 (9th Cir. 2009), and we deny the petition for review.
De Avila-Barbosa does not challenge the agency’s determination that he is
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 1995 conviction for
lewd or lascivious acts with a child under 14 years of age in violation of California
Penal Code § 288(a).
The BIA determined that De Avila-Barbosa is ineligible for relief under
former section 212(c), 8 U.S.C. § 1182(c) (repealed 1996), because his ground of
removability lacks a statutory counterpart in a ground of inadmissibility. See
8 C.F.R. § 1212.3(f)(5). De Avila-Barbosa’s legal and retroactivity challenges to
this determination are unavailing. See Abebe v. Mukasey, 554 F.3d 1203, 1207,
1208 n.7 (9th Cir. 2009) (en banc); see also Aragon-Ayon v. INS, 206 F.3d 847,
853 (9th Cir. 2000) (“We are satisfied that Congress intended the 1996
amendments to make the aggravated felony definition apply retroactively to all
defined offenses whenever committed.”).
Because the determination of ineligibility is dispositive, we do not reach De
Avila-Barbosa’s remaining contentions.
PETITION FOR REVIEW DENIED.
2 05-73285