                                                                             FILED
                            NOT FOR PUBLICATION                              JAN 28 2011

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




                            FOR THE NINTH CIRCUIT

WILMOUR WORTHINGTON                              No. 09-70655
MCPHERSON,
                                                 Agency No. A034-074-291
            Petitioner,
                                                 MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

            Respondent.



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

                             Argued September 14, 2010
                            Submitted December 22, 2010
                              San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS,** Senior District
Judge.



       *
            This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.

       **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
      Following oral argument, we deferred submission of this case pending

resolution of the petition for rehearing en banc in Ledezma-Galicia v. Holder, 599

F.3d 1055 (9th Cir. 2010). Because the court did not grant rehearing en banc, the case

has now been submitted. We have jurisdiction under 8 U.S.C. § 1252(a)(1), as

amended by the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231

(May 11, 2005).

      Petitioner Wilmour W. McPherson is a native and citizen of Belize. A 2008

arrest in California brought McPherson to the attention of the Department of

Homeland Security (DHS), based on his 1985 convictions on two counts of attempted

murder.   McPherson was served with a Notice to Appear charging him with

removability as an aggravated felon, pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii), because of those convictions.

      The immigration judge (IJ) found McPherson removable for having committed

an aggravated felony in the form of an attempted murder offense and an attempted

crime of violence. The IJ further found that McPherson was not eligible for any other

forms of relief and ordered him removed to Belize. The Board of Immigration

Appeals (BIA) found that the IJ committed no error and dismissed the appeal.

      Although the court generally has jurisdiction under 8 U.S.C. § 1252 to review

the BIA’s final removal order, we lack jurisdiction to review an order of removal



                                          2
against an alien who is removable for having committed an aggravated felony. See

8 U.S.C. § 1252(a)(2)(C). However, the court retains jurisdiction to determine its

jurisdiction, including the determination of whether an offense is an aggravated felony

under the INA. See Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010).

      The court’s review is limited to the decision of the BIA, except to the extent

that the BIA incorporates the IJ’s decision as its own, in which case the IJ’s decision

is treated as that of the BIA and is reviewed. See Becker v. Gonzales, 473 F.3d 1000,

1001 n.2 (9th Cir. 2007). The court reviews de novo legal questions and mixed

questions of law and fact. See Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006).

      The Attorney General contends that McPherson’s attempted murder conviction

constitutes an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43)(A), and is

therefore grounds for removal under 8 U.S.C. § 1227(a)(2)(A)(iii). McPherson asserts

that ground of removal does not apply to convictions that occurred prior to November

18, 1988.

      McPherson’s conviction occurred before the enactment of the Anti-Drug Abuse

Act of 1988 (ADAA), Pub. L. No. 100-690, 102 Stat. 4181, which amended the

Immigration and Nationality Act (INA). In Ledezma-Galicia v. Holder,          F.3d    ,

2010 WL 5174979 (9th Cir. Dec. 22, 2010), we noted that the ADAA “created the

category of crimes denominated ‘aggravated felonies,’ and provided that any alien



                                          3
who was convicted of an ‘aggravated felony’ at any time after entering the United

States was subject to deportation.” Id. at *2 (internal citations omitted). A temporal

limitation in the ADAA limited aggravated felony deportations to post-ADAA

convictions. See id.

      The court in Ledezma-Galicia examined subsequent amendments to the INA,

such as the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, and the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, div. C, 110 Stat. 3009-546, and concluded that “the ADAA’s temporal

limitation remains in effect as an exception to other temporal provisions enacted

later,” precluding the deportation of an individual convicted prior to the enactment of

the ADAA. See Ledezma-Galicia,         F.3d   , 2010 WL 5174979, at *2-3.

      We conclude that McPherson is not removable by reason of being an

aggravated felon because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions,

like McPherson’s, that occurred before November 18, 1988. Accordingly, we will

grant the petition and remand the case to the BIA.

      GRANTED and REMANDED.




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