               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0013n.06

                                       Case No. 13-3568

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Jan 13, 2014
GABINO ALONZO JACQUEZ-PEREZ,                         )                  DEBORAH S. HUNT, Clerk
                                                     )
       Petitioner,                                   )
                                                     )        ON PETITION FOR REVIEW
v.                                                   )        FROM THE UNITED STATES
                                                     )        BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General,               )        APPEALS
                                                     )
       Respondent.                                   )
                                                     )
                                                     )                             OPINION


BEFORE: COLE, GILMAN, and DONALD, Circuit Judges.

       PER CURIAM. Gabino Jacquez-Perez petitions us to review an administrative decision

by the Board of Immigration Appeals (the “Board”), which affirmed an immigration judge’s

decision that Jacquez-Perez is ineligible for voluntary departure because he was convicted of an

aggravated felony. We deny the petition.

       Jacquez-Perez, a citizen of Mexico, entered the United States in 1986 without having

been admitted or paroled. He pleaded guilty in 1989, when he was nineteen years old, to felony

theft for driving a stolen car, for which he received a three-year suspended sentence. Over

twenty-one years later, Immigration and Customs Enforcement (“ICE”) sought to remove

Jacquez-Perez from this country. The agency claimed Jacquez-Perez should be removed under

8 U.S.C. § 1182(a)(6)(A)(i), which prohibits an alien from being admitted to the United States if
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he enters illegally, and 8 U.S.C. § 1182(a)(2)(A)(i)(I), which prohibits an alien from being

admitted if he is convicted of a crime involving moral turpitude. Jacquez-Perez agreed he was

removable under the first charge, and the immigration judge later sustained the second charge.

       Jacquez-Perez sought relief from removal under 8 U.S.C. § 1229c, which allows an

eligible alien to leave the country voluntarily rather than be subject to removal proceedings. An

alien is ineligible for such voluntary departure, however, if he has been convicted of an

“aggravated felony.”        8 U.S.C. § 1229c(a)(1), (b)(1)(C) (referencing 8 U.S.C. §

1227(a)(2)(A)(iii)). At the time Jacquez-Perez was convicted, a theft offense resulting in at least

a five-year term of imprisonment was an “aggravated felony.” In 1996, however, Congress

expanded the definition of “aggravated felony” to include theft offenses resulting in at least a

one-year term of imprisonment. Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 321(a)(3), 110 Stat. 3009-627 (1996).                  The

immigration judge found that Jacquez-Perez was ineligible for voluntary departure because his

three-year suspended sentence was an aggravated felony under the statute as revised, and it

ordered his removal to Mexico. Jacquez-Perez reserved right to appeal the aggravated-felony

determination, and he did so. The Board affirmed, and Jacquez-Perez now petitions this court.

       The government contends that we lack jurisdiction to review the removal order because

Jacquez-Perez did not present the issue he argues before us to the Board, thereby failing to

exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1) (“A court may review a final

order of removal only if . . . the alien has exhausted all administrative remedies . . . .”); Bi Xia Qu

v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (“For an immigrant to exhaust her administrative

remedies, she must properly present her claim to the BIA.”). Though a close call, we find that

we have jurisdiction. In his petition to this court, Jacquez-Perez argues that he is eligible for


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voluntary departure because his theft conviction resulted in a three-year suspended sentence,

which was not considered an aggravated felony at the time of conviction. On appeal to the

Board, Jacquez-Perez noted that he “was given a suspended sentence of 3 years,” arguing that

“this should be not considered an aggravated felony.” Charitably interpreting these statements,

we find that Jacquez-Perez presented his argument to the Board and thus exhausted the

administrative remedies available to him.

       Nevertheless, Jacquez-Perez’s petition must fail.       In expanding the definition of

“aggravated felony,” Congress explicitly stated that the expanded definition “applies regardless

of whether the conviction was entered before . . . the date of enactment [September 30, 1996],”

IIRIRA § 321(b) (codified at 8 U.S.C. § 1101(a)(43)), and that the new definition “shall apply to

actions taken on or after the date of the enactment of this Act, regardless of when the conviction

occurred,” id. § 321(c). See also I.N.S. v. St. Cyr, 533 U.S. 289, 318–19 & n.43 (2001) (using

these sections as an example of Congress’s unambiguous intent to apply the expanded definition

retroactively); Tran v. Gonzales, 447 F.3d 937, 941 (6th Cir. 2006) (holding that the expanded

definition of “aggravated felony” applies retroactively in “actions taken” on or after September

30, 1996). Here, the relevant “action taken” is ICE serving Jacquez-Perez with the Notice to

Appear. See Saqr v. Holder, 580 F.3d 414, 422 (6th Cir. 2009). That action occurred years after

1996, so the expanded definition of aggravated felony must apply. Furthermore, we find no

constitutional violation in such retroactivity. See, e.g., Hamama v. I.N.S., 78 F.3d 233, 235 (6th

Cir. 1996) (“The Supreme Court has repeatedly upheld the constitutionality of deportation

proceedings that apply new law to past criminal conduct.”) (citing Lehmann v. United States, 353

U.S. 685, 690 (1957); Marcello v. Bonds, 349 U.S. 302, 314 (1955)).




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       Accordingly, we deny Jacquez-Perez’s petition to review the order of the Board of

Immigration Appeals.




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