                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2010

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




                            FOR THE NINTH CIRCUIT



JOSE DANIEL AVILA-MEDRANO,                       No. 05-76971

              Petitioner,                        Agency No. A079-219-934

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

              Respondent.



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

                             Submitted May 4, 2010 **
                               Pasadena, California

Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.***

       Petitioner Jose Daniel Avila-Medrano seeks review of a Final

Administrative Removal Order issued by the Department of Homeland Security



        *
             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).
        ***
             The Honorable Judge Edward Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
(“the Department”) on December 1, 2005. On February 11, 2004, the Department

initiated expedited removal proceedings against Avila under 8 U.S.C. § 1228(b),

finding that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for

having been convicted of an aggravated felony offense in Arizona.

      Although we do not have jurisdiction “to review any final order of removal

against an alien who is removable by reason of having committed a criminal

offense covered in section . . . 1227(a)(2)(A)(iii),” 8 U.S.C. § 1252(a)(2)(C), we do

have jurisdiction over “constitutional claims or questions of law raised upon a

petition for review,” 8 U.S.C. § 1252(a)(2)(D). In his opening brief, Avila did not

contest that his conviction under Ariz. Rev. Stat. Ann. §§ 13-1203(A)(2) and 13-

1204(A)(2) qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii)

He has therefore waived this argument, and we do not consider it on appeal. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a

party in its opening brief are deemed waived.”).

      Avila argues that the Department’s discretion to place some aggravated

felons in expedited removal proceedings under 8 U.S.C. § 1228(b) and other

aggravated felons in general removal proceedings under 8 U.S.C. § 1229a violates

his Fifth Amendment right to equal protection. This argument is foreclosed by

United States v. Calderon-Segura, 512 F.3d 1104 (9th Cir. 2008), in which we


                                          2
held, “a rational basis exists for granting the Attorney General discretion to place

some non-[lawful permanent resident] aggravated felons into expedited removal

proceedings and others into potentially more lenient general removal proceedings. .

. . [T]he decision of Congress was . . . a rational first step towards the legitimate

goal of rapidly removing criminal aliens. We therefore conclude that 8 U.S.C. §

1228(b)(1) does not violate equal protection.” Id. at 1107-08 (citations omitted).

      Likewise, “the agency’s failure to advise [Avila] of discretionary relief that

he was statutorily barred from obtaining neither violated his due process rights, nor

was it prejudicial.” Id. at 1108.

      AFFIRMED.




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