                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      May 30, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 EDDIE MENDIOLA,

               Petitioner,                              No. 07-9548
          v.                                   Board of Immigration Appeals
 MICHAEL B. MUKASEY, United
 States Attorney General,

               Respondent.


                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON and McCONNELL, Circuit Judges.



      Eddie Mendiola filed a motion with the Board of Immigration Appeals

(“BIA”) to reopen removal proceedings that resulted in his deportation. The BIA

denied the motion for lack of jurisdiction under 8 C.F.R. § 1003.23(d), and we

affirm the decision.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      Mr. Mendiola, a citizen of Peru, became a lawful permanent resident of the

United States on April 28, 1989. On July 30, 1996, Mr. Mendiola pleaded guilty

in the Superior Court of Orange County, California, to assault with a deadly

weapon, a felony under section 245(a)(1) of the California Penal Code, and

possession of a controlled substance (steroids), a misdemeanor under section

11377(a) of the California Health and Safety Code. On August 7, 2000, Mr.

Mendiola again pleaded guilty to possession of steroids, this time a felony under

California law because it was a second offense. Cal. Health & Safety Code §

11377(a)–(b). On September 23, 2003, Mr. Mendiola pleaded guilty in the First

Judicial District of Kootenai County, Idaho, to accessory to a felony in violation

of section 18-205 of the Idaho Code. After his conviction in Idaho, Mr. Mendiola

was detained at an immigration facility in Aurora, Colorado. On April 16, 2004,

the Department of Homeland Security commenced removal proceedings against

Mr. Mendiola, seeking to remove him as an alien convicted of an aggravated

felony offense as defined in 8 U.S.C. § 1101(a)(43)(B), which categorizes a drug

trafficking crime as an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any

alien who is convicted of an aggravated felony at any time after admission is

deportable.”).

      On July 14, 2004, an immigration judge entered an oral decision finding

Mr. Mendiola removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted

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of an aggravated felony offense, and ordered Mr. Mendiola removed to Peru. At

that time, Tenth Circuit precedent held that a state drug offense would qualify as

a drug trafficking felony under 18 U.S.C. § 924(c) if punishable under the

Controlled Substances Act and classified as a felony in the convicting

jurisdiction. United States v. Castro-Rocha, 323 F.3d 846, 849 (10th Cir. 2003),

abrogated by Lopez v. Gonzales, 549 U.S. 47 (2006). The immigration judge

found that Mr. Mendiola’s conviction for steroid possession was both a drug

offense as defined by federal statute and a felony under California law, subjecting

him to removal. S.A.R. 80–81.

      Mr. Mendiola appealed this decision to the Board of Immigration Appeals

(“BIA”), arguing that Ninth Circuit precedent ought to have been applied to

determine whether his conviction qualified as a drug trafficking offense because

he was convicted of the felony offense in California state court. Mr. Mendiola

claimed that under Ninth Circuit precedent, a state drug crime must be classified

as a felony under federal law, not merely under the law of the convicting

jurisdiction, to qualify as a drug trafficking felony. See Cazarez-Gutierrez v.

Ashcroft, 382 F.3d 905, 910 (9th Cir. 2004); Lopez v. Gonzales, 549 U.S. 47

(2006). On November 9, 2004, the BIA dismissed the appeal, approving the

immigration judge’s application of Tenth Circuit precedent. Mr. Mendiola then

filed a petition for review before the Tenth Circuit. This Court rejected Mr.




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Mendiola’s contention that Ninth Circuit precedent should have controlled.

Mendiola v. Gonzales, 189 F. App’x 810 (10th Cir. 2006).

      Mr. Mendiola was removed from the United States and subsequently re-

entered illegally. Mr. Mendiola filed a motion to reopen his removal proceedings

with the BIA. On June 11, 2007, the BIA denied his motion for lack of

jurisdiction, stating that “[a] motion to reopen may not be made by an alien in

removal proceedings subsequent to his departure from the United States.” S.A.R.

2 (citing 8 C.F.R. § 1003.2(d)). We affirm the BIA’s denial of Mr. Mendiola’s

motion.

                                    II. Analysis

      The government argues that we are prevented from considering Mr.

Mendiola’s motion by 8 C.F.R. § 1003.2(d), which states that “[a] motion to

reopen or a motion to reconsider shall not be made by or on behalf of a person

who is the subject of exclusion, deportation, or removal proceedings subsequent

to his or her departure from the United States.” Under the government’s theory,

because Mr. Mendiola was deported to Peru, he is forever precluded by the

regulation from bringing a motion to reopen. See Navarro-Miranda v. Ashcroft,

330 F.3d 672, 675–76 (5th Cir. 2003); Mansour v. Gonzales, 470 F.3d 1194, 1198

(6th Cir. 2006); Singh v. Gonzales, 468 F.3d 135, 140 (2d Cir. 2006). The Ninth

Circuit has rejected this interpretation of the regulation, reasoning that because

the regulation is written in the present tense, it applies only to those persons who

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are the subject of pending removal proceedings. Lin v. Gonzales, 473 F.3d 979,

981–82 (9th Cir. 2007) (construing identical language in 8 C.F.R. §

1003.23(b)(1), which applies to motions to reopen filed with an IJ, rather than the

BIA); Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005).

      The Tenth Circuit has yet to decide this issue, and we need not decide it

here. Mr. Mendiola did not argue in his opening brief that 8 C.F.R. § 1003.2(d)

does not apply to him because he is not currently the subject of removal

proceedings. Mr. Mendiola has thereby waived this argument. United States v.

Black, 369 F.3d 1171, 1176 (10th Cir. 2004) (issues not raised in the opening

brief are deemed waived). Because Mr. Mendiola was provided adequate notice

and process during his initial removal proceedings, his claim that the denial of his

motion violates his due process rights is without basis.

      Even if we were to consider Mr. Mendiola’s motion, his argument based on

the Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47 (2006), which

held that a drug possession offense must be a felony under federal law to qualify

as a drug trafficking crime, does not assist him. Under the Controlled Substances

Act, a conviction for possession of a controlled substance committed after a prior

possession conviction can result in a term of imprisonment of up to two years. 21

U.S.C. § 844(a); Lopez, 549 U.S. 47, n. 6. Therefore, even in light of Lopez, Mr.

Mendiola’s conviction qualifies as a drug trafficking crime subjecting him to

deportation under 8 U.S.C. § 1227(a)(2)(A)(iii).

                                         -5-
      The judgment of the Board of Immigration Appeals of the United States

is AFFIRMED. Because we have determined that Mr. Mendiola is barred from

filing a motion to reopen by 8 C.F.R. § 1003.2(d), we DENY his motion to file an

appendix and the government’s cross-motion to supplement the administrative

record as moot. All other outstanding motions are DENIED as moot.

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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