Ricardo Hidalgo-Chavez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 24 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO HIDALGO-CHAVEZ, No. 12-72583

Petitioner, Agency No. A027-587-144

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted January 21, 2014**

Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.

Ricardo Hidalgo-Chavez, a native and citizen of Mexico, petitions pro se for

review of an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from an immigration judge’s deportation order. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for substantial evidence factual

*
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).
determinations, Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001), and review de

novo questions of law, Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

Hidalgo-Chavez’s challenge to the agency’s inadmissibility determination is

unavailing because the agency found him inadmissible based not on his

convictions but rather on his entry without inspection, which he conceded and

which the record adequately supports. See 8 U.S.C. § 1231(a)(2) (repealed 1997).

The agency correctly concluded that Hidalgo-Chavez’s 1991 conviction

under California Penal Code § 12021(a) constitutes an aggravated-felony

conviction under 8 U.S.C. § 1101(a)(43). See United States v. Castillo-Rivera,

244 F.3d 1020, 1023 (9th Cir. 2001) (concluding that the defendant possessed a

conviction for the generic aggravated-felony offense of “being a felon in

possession of a handgun” based on his plea to a complaint alleging that he had

possessed a handgun after having previously been convicted of a felony). Our case

law forecloses Hidalgo-Chavez’s contrary contentions. See Lopez-Castellanos v.

Gonzales, 437 F.3d 848, 852 (9th Cir. 2006) (“[T]he effective-date provision of the

definitional [aggravated-felony] statute . . . applies regardless of the date of the

commission of the crime.”); Castillo-Rivera, 244 F.3d at 1023 (“[A] state felon in

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possession offense is not required to include a commerce nexus as one of its

elements in order to qualify as an aggravated felony . . . .”).

Substantial evidence supports the agency’s determination that Hidalgo-

Chavez’s aggravated-felony conviction renders him statutorily ineligible for

suspension of deportation. See Ramos, 246 F.3d at 1265-66 (requiring suspension

applicants to demonstrate “good moral character” (citation and internal quotation

marks omitted)); Castiglia v. INS, 108 F.3d 1101, 1103 (9th Cir. 1997) (“[Title 8 of

U.S.C.] § 1101(f)(8) . . . bars from proving good moral character an applicant who

at any time has been convicted of an aggravated felony.”).

We lack jurisdiction to consider Hidalgo-Chavez’s pretensions of eligibility

for adjustment of status and a former section 212(c) waiver of inadmissibility

because he failed to exhaust these issues before the BIA. See Tijani v. Holder,

628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims

not presented in an alien’s administrative proceedings before the BIA.”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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