                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 15, 2007

                                                                Charles R. Fulbruge III
                               No. 06-60814                             Clerk
                             Summary Calendar




SANTIAGO PACHECO DOMINGUEZ,

                                         Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                         Respondent.



                         --------------------
                  Petition for Review of an Order of
                   the Board of Immigration Appeals
                          BIA No. A93 202 794
                         --------------------




Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

     Mexican citizen Santiago Pacheco Dominguez petitions for re-

view of the decision of the Board of Immigration Appeals (“BIA”)

dismissing his appeal of the decision of the Immigration Judge (IJ)

denying his application for cancellation of removal pursuant to

8 U.S.C. § 1229b.    Pacheco Dominguez contends that his right to due



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                              No. 06-60814
                                   -2-

process was violated when he was placed in removal proceedings af-

ter he had been denied status under the special agricultural worker

(“SAW”) program set out at 8 U.S.C. § 1160.        Pacheco Dominguez ar-

gues that information from his application for SAW status was used

in   violation   of   the   confidentiality   provision   of   8   U.S.C.

§ 1160(b)(6)(A)(i).    Even if it is assumed that Pacheco Dominguez

exhausted administrative remedies as to that contention, § 1160(b)-

(6)(A)(i) only prohibits use of information gathered during the SAW

legalization process; it does not prohibit immigration authorities

from checking on whether SAW status was granted or denied.           See

Arreola-Arrellano v. INS, 223 F.3d 653, 656 (7th Cir. 2000).

      Pacheco Dominguez presents several arguments challenging the

determination that his 1989 conviction of alien smuggling rendered

him ineligible for cancellation of removal.        Because, however, he

admitted removability on the basis that he was not admitted or

paroled into the United States, he was ineligible for cancellation

of removal regardless of the status of his conviction.               See

§ 1229b(a)(1)&(2). Moreover, counsel’s concession that Pacheco Do-

minguez had been convicted of alien smuggling was binding on Pa-

checo Dominguez, see Matter of Velasquez, 19 I.&N. Dec. 377, 382

(BIA 1986); alien smuggling is currently defined as an aggravated

felony, regardless of the sentence imposed, 8 U.S.C. § 1101(a)-

(43)(N);   the   current    definition   applies    retroactively,   id.

§ 1101(a)(43); and its retroactivity does not violate the Due Pro-

cess or Ex Post Facto Clause.    See Madriz-Alvarado v. Ashcroft, 383
                          No. 06-60814
                               -3-

F.3d 321, 334 (5th Cir. 2004) (Due Process Clause); Marcello v.

Ahrens, 212 F.2d 830, 838-39 (5th Cir. 1954), aff’d, 349 U.S. 302

(1955) (Ex Post Facto Clause).   Finally, 8 U.S.C. § 1182(h), which

Pacheco Dominguez argues entitles him to a waiver, is facially in-

applicable to his case.

     PETITION DENIED.
