Pacheco Dominguez v. Gonzales

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 15, 2007 Charles R. Fulbruge III No. 06-60814 Clerk Summary Calendar SANTIAGO PACHECO DOMINGUEZ, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. -------------------- Petition for Review of an Order of the Board of Immigration Appeals BIA No. A93 202 794 -------------------- Before DAVIS, SMITH, and OWEN, Circuit Judges. PER CURIAM:* Mexican citizen Santiago Pacheco Dominguez petitions for re- view of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the decision of the Immigration Judge (IJ) denying his application for cancellation of removal pursuant to 8 U.S.C. § 1229b. Pacheco Dominguez contends that his right to due * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 06-60814 -2- process was violated when he was placed in removal proceedings af- ter he had been denied status under the special agricultural worker (“SAW”) program set out at 8 U.S.C. § 1160. Pacheco Dominguez ar- gues that information from his application for SAW status was used in violation of the confidentiality provision of 8 U.S.C. § 1160(b)(6)(A)(i). Even if it is assumed that Pacheco Dominguez exhausted administrative remedies as to that contention, § 1160(b)- (6)(A)(i) only prohibits use of information gathered during the SAW legalization process; it does not prohibit immigration authorities from checking on whether SAW status was granted or denied. See Arreola-Arrellano v. INS, 223 F.3d 653, 656 (7th Cir. 2000). Pacheco Dominguez presents several arguments challenging the determination that his 1989 conviction of alien smuggling rendered him ineligible for cancellation of removal. Because, however, he admitted removability on the basis that he was not admitted or paroled into the United States, he was ineligible for cancellation of removal regardless of the status of his conviction. See § 1229b(a)(1)&(2). Moreover, counsel’s concession that Pacheco Do- minguez had been convicted of alien smuggling was binding on Pa- checo Dominguez, see Matter of Velasquez, 19 I.&N. Dec. 377, 382 (BIA 1986); alien smuggling is currently defined as an aggravated felony, regardless of the sentence imposed, 8 U.S.C. § 1101(a)- (43)(N); the current definition applies retroactively, id. § 1101(a)(43); and its retroactivity does not violate the Due Pro- cess or Ex Post Facto Clause. See Madriz-Alvarado v. Ashcroft, 383 No. 06-60814 -3- F.3d 321, 334 (5th Cir. 2004) (Due Process Clause); Marcello v. Ahrens, 212 F.2d 830, 838-39 (5th Cir. 1954), aff’d, 349 U.S. 302 (1955) (Ex Post Facto Clause). Finally, 8 U.S.C. § 1182(h), which Pacheco Dominguez argues entitles him to a waiver, is facially in- applicable to his case. PETITION DENIED.