FILED
NOT FOR PUBLICATION FEB 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARLOS MARTINEZ-RUIZ, No. 06-75244
Petitioner, Agency No. A074-333-884
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2011 **
Pasadena, California
Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.
Carlos Martinez-Ruiz petitions for review of the Board of Immigration
Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) decision denying
his application for a waiver of inadmissibility and adjustment of status. We have
*
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).
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to review “constitutional claims
or questions of law.” See Mejia v. Gonzales, 499 F.3d 991, 998-99 (9th Cir. 2007).
We deny the petition for review.
Martinez-Ruiz’s argument that applying 8 C.F.R. § 1212.7(d) to him has an
impermissible retroactive effect is foreclosed by Mejia, 499 F.3d at 997 (analyzing
identical regulation contained in 8 C.F.R. § 212.7(d)). “The regulation speaks only
to the exercise of discretion under § 212(h)(2), not to the threshold determination
of eligibility under § 212(h)(1). The Attorney General has not changed or altered
the statutory ‘extreme hardship’ standard. Instead, he has promulgated a regulation
to guide IJs in the way they exercise their relatively unfettered grant of discretion
after the statutory requirements are met.” Id. at 996 (citations omitted). Therefore,
applying Section 1212.7(d) to the petitioner “does not have an impermissibly
retroactive effect because it neither attaches a new disability to past conduct nor
upsets settled expectations.” Id. at 998.
Martinez-Ruiz’s second argument fails as well. The BIA did not use an
incorrect legal standard in concluding that Martinez-Ruiz’s conviction constituted
a “violent or dangerous crime” subjecting him to a heightened hardship standard.
8 C.F.R. § 1212.7(d) (“The Attorney General, in general, will not favorably
exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) . . .
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with respect to immigrant aliens who are inadmissible under section 212(a)(2) of
the Act in cases involving violent or dangerous crimes, [unless] . . . an alien clearly
demonstrates that the denial of the application . . . would result in exceptional and
extremely unusual hardship.”). The BIA had no obligation to conduct a case-by-
case analysis of Petitioner’s offense under Matter of Frentescu, 18 I & N Dec. 244
(BIA 1982), where, as here, we have already determined that violations of
California Penal Code § 211 are categorically crimes of violence. See United
States v. McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) (“We hold that robbery
under California law is [] by definition a crime of violence.”); see also Mejia, 499
F.3d at 999 (referring to “crimes of violence” is “not inconsistent with the statutory
standard” for “violent and dangerous” crimes).
PETITION DENIED.
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