FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ESTEBAN JIMENEZ, No. 08-73830
Petitioner, Agency No. A092-739-737
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2013 **
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Esteban Jimenez petitions for review of the Board of Immigration Appeals
order dismissing his appeal. The BIA affirmed the immigration judge’s decision
that Jimenez was not entitled to consideration of his application for a section
*
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).
212(c) waiver because Jimenez also required a section 212(h) waiver to maintain
his status, and he did not qualify for that waiver. We agree and deny his petition.
Jimenez attained permanent resident status in 1992. He was convicted of
drug trafficking in 1995 and perjury in 1997. He does not dispute that drug
trafficking is an “aggravated felony,” and perjury is a “crime involving moral
turpitude.” A permanent resident convicted of an “aggravated felony” is removable
unless he is eligible for an adjustment of status. 8 U.S.C. § 1227(a)(2)(A)(iii);
Judulang v. Holder, 132 S. Ct. 476, 480-81 (2011). An adjustment of status is
unavailable to a permanent resident convicted of a “crime involving moral
turpitude” unless he receives a section 212(h) waiver. 8 U.S.C.
§§ 1182(a)(2)(A)(i); 1182(h). Under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), a section 212(h) waiver is
unavailable to a permanent resident convicted of an “aggravated felony.” 8 U.S.C.
§ 1182(h). Though Jimenez argues that IIRIRA’s amendment to section 212(h)
does not apply to him because his drug trafficking conviction predated the statute,
we have already decided that this amendment is permissibly retroactive. Alvarez-
Barajas v. Gonzales, 418 F.3d 1050, 1054-55 (9th Cir. 2005). As a permanent
resident convicted of a “crime involving moral turpitude” and an “aggravated
felony,” Jimenez is removable without prospect of an adjustment of status.
2
The BIA did not err in deciding that the immigration judge did not need to
consider Jimenez’s application for a section 212(c) waiver because such
consideration would have been futile. See In re Hashmi, 24 I. & N. Dec. 785, 790
(BIA 2009).
PETITION DENIED.
3