                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 23 2010

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




                              FOR THE NINTH CIRCUIT



JUAN BRISENO-GUTIERREZ,                           No. 06-73918

               Petitioner,                        Agency No. A038-514-108

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

               Respondent.



                      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.

       Juan Briseno-Gutierrez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review for substantial evidence whether a conviction was established by clear


          *
             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).
and convincing evidence, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.

2004), and review de novo questions of law and constitutional claims, Khan v.

Holder, 584 F.3d 773, 776 (9th Cir. 2009). We deny the petition for review.

         The agency concluded that Briseno-Gutierrez is removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) based on his 1992 conviction for lewd or lascivious acts with a

child in violation of California Penal Code § 288(c).

         Briseno-Gutierrez’s contention that the record of conviction is inconsistent

and ambiguous is not supported by the record. Substantial evidence supports the

finding that the government established the existence of his conviction by clear and

convincing evidence. See 8 U.S.C. § 1229a(c)(3)(A)-(B).

         Briseno-Gutierrez 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U.S.C. § 1182(c) (repealed 1996), because his ground of removability lacks a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);

see also Abebe v. Mukasey, 554 F.3d 1203, 1207, 1208 n.7 (9th Cir. 2009) (en

banc).

         Briseno-Gutierrez’s retroactivity and equal protection challenges to the

agency’s denial of section 212(c) relief are foreclosed by Abebe, 554 F.3d at 1207,

1208 n.7.

         PETITION FOR REVIEW DENIED.


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