FILED
NOT FOR PUBLICATION JUL 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELIEZAR ABELLA, a.k.a. Eliezar A. No. 10-71500
Abella, a.k.a. Bert,
Agency No. A036-147-858
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Eliezar Abella, a native and citizen of the Philippines, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review de novo questions of law. Vargas-Hernandez v. Gonzales, 497 F.3d
919, 921 (9th Cir. 2007). We deny in part and grant in part the petition for review,
and remand for further proceedings.
The BIA correctly concluded that the amended aggravated felony definition
set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208 (“IIRIRA”), applies retroactively to render Abella’s
conviction under California Penal Code § 192(a) an aggravated felony. See
Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005) (IIRIRA
definition applies retroactively). Abella’s contention that retroactive application of
IIRIRA violates his rights to due process and equal protection is unpersuasive, and
his contention that it violates the prohibitions against ex post facto laws and bills of
attainder is foreclosed by Artukovic v. INS, 693 F.2d 894, 897 (9th Cir. 1982).
In light of the Supreme Court’s decision in Judulang v. Holder, 132 S. Ct.
476, 484 (2011), however, we grant the petition for review in part and remand to
the BIA to reassess Abella’s eligibility for relief under former § 212(c) of the
Immigration and Nationality Act.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
2 10-71500