Mariano De Avila-Barbosa v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIANO DE AVILA-BARBOSA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-73285
Agency No. A038-516-214
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Mariano De Avila-Barbosa, a native and citizen of Mexico, 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.
FILED
SEP 24 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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05-73285 2
§ 1252. We review de novo questions of law and constitutional claims, Khan v.
Holder, 584 F.3d 773, 776 (9th Cir. 2009), and we deny the petition for review.
De Avila-Barbosa does not challenge the agency’s determination that he is
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 1995 conviction for
lewd or lascivious acts with a child under 14 years of age in violation of California
Penal Code § 288(a).
The BIA determined that De Avila-Barbosa is ineligible for relief under
former section 212(c), 8 U.S.C. § 1182(c) (repealed 1996), because his ground of
removability lacks a statutory counterpart in a ground of inadmissibility. See
8 C.F.R. § 1212.3(f)(5). De Avila-Barbosa’s legal and retroactivity challenges to
this determination are unavailing. See Abebe v. Mukasey, 554 F.3d 1203, 1207,
1208 n.7 (9th Cir. 2009) (en banc); see also Aragon-Ayon v. INS, 206 F.3d 847,
853 (9th Cir. 2000) (“We are satisfied that Congress intended the 1996
amendments to make the aggravated felony definition apply retroactively to all
defined offenses whenever committed.”).
Because the determination of ineligibility is dispositive, we do not reach De
Avila-Barbosa’s remaining contentions.
PETITION FOR REVIEW DENIED.

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