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NOT FOR PUBLICATION APR 01 2010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