Hang Nam Yoon v. Holder

FILED
NOT FOR PUBLICATION MAY 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HANG NAM YOON, No. 05-74544
Petitioner, Agency No. A035-138-732
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 14, 2010 **
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and MARTINEZ,
District Judge.***
*
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).
***
The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
Hang Nam Yoon (“Yoon”), a citizen of South Korea, brings this second
petition for review of the Board of Immigration Appeals’ (“BIA”) August 2004
order of removal, which deemed Yoon removable under INA § 237(a)(2)(A)(iii)
based on an aggravated felony conviction.1 This court already decided in Yoon v.
Gonzales, Case No. 04-74307, that Yoon’s conviction constitutes an aggravated
felony, and consequently that the BIA’s removal order was valid, when it
dismissed Yoon’s first petition for review for lack of jurisdiction. Because Yoon
could have presented his arguments concerning the effect of Leocal v. Ashcroft,
543 U.S. 1 (2004), in his first petition, which was decided more than two months
prior to this court’s dismissal of that petition, the present petition does not present
grounds that could not have been presented in the prior judicial proceeding.2 Nor
has Yoon shown that the prior proceeding was inadequate or ineffective to test the
validity of the BIA’s order. Accordingly, we lack jurisdiction to review Yoon’s
second petition. 8 U.S.C. § 1252(d)(2); see Nunes v. Ashcroft, 375 F.3d 805, 809-
10 (9th Cir. 2003).
1
We deny Yoon’s motion to file a late reply brief.
2
Although Yoon argues that Fernandez-Ruiz v. Gonzales, 466 F.3d 1121
(9th Cir. 2006) (en banc), represented a change in controlling law, Fernandez-Ruiz
merely applied the Supreme Court’s decision in Leocal. Thus, petitioner’s
arguments were available as soon as Leocal was decided and could have been
presented in his prior petition for review.
2
PETITION DISMISSED.
3