                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 24 2010

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




                             FOR THE NINTH CIRCUIT



 JORGE AVILA-AYALA,                               No. 07-74924

               Petitioner,                        Agency No. A092-057-300

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

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Jorge Avila-Ayala, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C.



          *
             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).

TL/Research
§ 1252. We review de novo constitutional challenges. Masnauskas v. Gonzales,

432 F.3d 1067, 1069 (9th Cir. 2005). We deny the petition for review.

       Avila-Ayala’s equal protection claim is not colorable because he was

ineligible for relief under former Immigration and Nationality Act § 212(c)

regardless of when proceedings were initiated against him. See Alvarez-Barajas v.

Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005); 8 C.F.R. § 1212.3(h)(2) (section

440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 applies to

guilty pleas made between April 24, 1996 and April 1, 1997).

       PETITION FOR REVIEW DENIED.




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