                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 22 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SERGIO NAVARRO-RUIZ,                             No. 08-71854

              Petitioner,                        Agency No. A038-941-217

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 5, 2012
                              Pasadena, California

Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.

       Petitioner Sergio Navarro-Ruiz, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision affirming an

Immigration Judge’s (“IJ”) determination that he was removable and ineligible for

relief due to his 1995 conviction for possession for sale of methamphetamine and

his 1996 conviction for possession of methamphetamine. The BIA concluded that


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Petitioner was not simultaneously eligible for waiver of inadmissibility under

former 8 U.S.C. § 1182, INA § 212(c) and cancellation of removal under 8 U.S.C.

§ 1229b, INA § 240A.

      Petitioner argues that the BIA did not provide him with meaningful review

because, in deciding that he could not file for relief simultaneously under INA

§§ 212(c) and 240A, the BIA relied on an unamended version of our opinion in

Garcia-Jimenez v. Gonzales, 472 F.3d 679 (9th Cir. 2007). We disagree.

Although the amended version of the opinion, Garcia-Jimenez v. Gonzales, 488

F.3d 1082 (9th Cir. 2007), included a dissent by Judge Pregerson and was available

at the time of the BIA’s decision, the text of the majority’s opinion remained

unchanged. Our panel is bound by the majority opinion in Garcia-Jimenez, 488

F.3d at 1083–86, which must be followed unless or until it is altered by a

supervening higher authority such as an en banc panel of our Court or the United

States Supreme Court. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir.

2003) (en banc). Judge Pregerson’s dissent therefore does not change the

majority’s holding that INA § 240A(c)(6) is unambiguous and that aliens may not

simultaneously receive cancellation of removal under INA § 240A(a) and waiver

of deportation under INA § 212(c). Garcia-Jimenez, 488 F.3d at 1086.




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      Petitioner argues that repeal of former 8 U.S.C. § 1254(a)(2), INA

§ 244(a)(2), which allowed for suspension of deportation, is impermissibly

retroactive as applied to him because at the time he entered his 1996 guilty plea he

could not have known INA § 244(a)(2) would be repealed. The repeal of INA

§ 244(a)(2) is not impermissibly retroactive as applied to an alien who was not

eligible for suspension of deportation at the time it was repealed. Valencia-Alvarez

v. Gonzales, 469 F.3d 1319, 1330 (9th Cir. 2006). An alien was only eligible for

suspension of deportation if he had good moral character for the period required.

INA § 244(a)(2) (repealed 1997). “No person shall be regarded as, or found to be,

a person of good moral character who, during the period for which good moral

character is required to be established, is, or was . . . (8) one who at any time has

been convicted of an aggravated felony . . . .” 8 U.S.C. § 1101(f)(8), INA

§ 101(f)(8). Petitioner was convicted of an aggravated felony in 1995 and thus

could not establish good moral character. Even if he received relief under INA

§ 212(c) for his 1995 conviction, that relief would not expunge the aggravated

felony from his record, and he would remain ineligible for suspension of

deportation. Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007).

      Petitioner argues that the government acted improperly by withholding

issuance of an Order to Show Cause (predecessor to the Notice to Appear) until


                                      Page 3 of 4
after the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

was passed. Under 8 U.S.C. § 1252(g), INA § 242(g), and our decision in

Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002), we do not have

jurisdiction to consider Navarro-Ruiz’s challenge to the timing of the

commencement of his removal proceedings. We therefore dismiss his claim due to

lack of jurisdiction

      Finally, Petitioner argues that if he were entitled to file simultaneous INA §§

212(c) and 240A petitions, an INA § 212(c) waiver for his 1995 conviction would

make him eligible for first offender treatment for his 1996 conviction. Because

Petitioner may not simultaneously file for relief under INA §§ 212(c) and 240A,

this argument is moot.

      The petition is DENIED IN PART and DISMISSED IN PART.




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