Anaya-Fernandez v. Holder

FILED NOT FOR PUBLICATION APR 01 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JORGE ANAYA-FERNANDEZ, No. 06-74313 Petitioner, Agency No. A014-680-851 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 16, 2010 ** Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges. Jorge Anaya-Fernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 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). IH/Research § 1252. We review de novo constitutional questions and questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), and we deny the petition for review. The agency properly concluded that Anaya-Fernandez is ineligible for § 212(c) relief with respect to his 2001 convictions. See 8 C.F.R. § 1212.3(h)(3) (“Section 212(c) relief is not available with respect to convictions arising from plea agreements made on or after April 1, 1997.”); see also United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002) (“To the extent [an alien] anticipated the continued availability of § 212(c) relief after [1996], his expectations were neither reasonable nor settled under [INS v. St. Cyr, 533 U.S. 289 (2001)].”). Anaya-Fernandez’s contention that the expanded aggravated felony definition contained in section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) cannot be applied to his pre- IIRIRA convictions is foreclosed. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005) (IIRIRA’s amendment of the definition of aggravated felony applies to convictions entered “before, on, or after” IIRIRA’s enactment date). IH/Research 2 06-74313 The agency concluded that Anaya-Fernandez’s 1976 conviction for sale of a controlled substance in violation of California Health & Safety Code § 11379 was a drug-trafficking aggravated felony under IIRIRA’s amended definition. Anaya- Fernandez waived review of this determination by failing to challenge it in his opening brief to this court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). The agency therefore properly concluded that Anaya-Fernandez is statutorily ineligible for cancellation of removal as an alien who has been “convicted of any aggravated felony,” 8 U.S.C. § 1229b(a)(3), because even if Anya-Fernandez were granted a waiver of his 1976 conviction under § 212(c) it would nonetheless remain an aggravated felony for purposes of precluding his application for cancellation of removal, see Becker v. Gonzales, 473 F.3d 1000, 1004 (9th Cir. 2007). Anaya-Fernandez’s due process claims are unpersuasive. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process violation). Anaya-Fernandez’s remaining contentions are unpersuasive. PETITION FOR REVIEW DENIED. IH/Research 3 06-74313