                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

JORGE CONTRERAS PINEDA,                          No. 14-73945

              Petitioner,                        Agency No. A073-992-027

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                            Submitted December 7, 2017**
                              San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,*** District
Judge.

      Petitioner Jorge Contreras Pineda is a native and citizen of El Salvador who

unlawfully entered the United States in 1988. In 1989, Petitioner pleaded guilty to

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
          The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
forcible rape, in violation of California Penal Code § 261(a)(2), and was sentenced

to three years in prison. At the time of his conviction, the Immigration and

Nationality Act (“INA”) did not define “aggravated felony” to include rape. INA

§ 101(a)(43)(a); 8 U.S.C. 1101(a)(43)(A) (1988).

      At his removal proceedings, Petitioner conceded removability but requested

relief from removal under § 203 of the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”), Pub. L. No. 105-100, 111 Stat. 2193 (1997).

The immigration judge and the Board of Immigration Appeals denied relief

because, they concluded, the rape conviction was an aggravated felony that

rendered him ineligible for NACARA relief. Petitioner timely petitions for review.

We have jurisdiction, 8 U.S.C. § 1252, and deny the petition.

      1. To establish eligibility for relief under NACARA, an alien must show,

among other things, that he is not removable under INA § 237(a)(2), 8 U.S.C.

§ 1227(a)(2). 8 C.F.R. § 1240.66(b)(1). An alien is removable under INA

§ 237(a)(2); 8 U.S.C. § 1227(a)(2), if he has been convicted of an aggravated

felony. As of 1996, the INA defines “aggravated felony” to include rape. INA

§ 101(a)(43)(A); 8 U.S.C. § 1101(a)(43)(A). Petitioner’s statute of conviction is a

rape offense for the purposes of the INA. Castro-Baez v. Reno, 217 F.3d 1057,

1058–59 (9th Cir. 2000). The expanded definition of “aggravated felony” applies


                                          2
retroactively. See, e.g., Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir. 2000);

see also INS v. St. Cyr, 533 U.S. 289, 319 (2001) (explaining that the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996’s (“IIRIRA”)

amendment of the definition of “‘aggravated felony’ . . . clearly states that it

applies with respect to ‘convictions entered before, on, or after’ the statute’s

enactment date” (alterations omitted)).

      2. Petitioner also is ineligible for relief under former INA § 244(a)(2).

Under that repealed provision, a person convicted of a crime of moral turpitude

was eligible for suspension of deportation only if, among other things, he had

“been physically present in the United States for a continuous period of not less

than ten years immediately following the commission of” the crime involving

moral turpitude. INA § 244(a)(2); 8 U.S.C. 1254(a)(2) (repealed 1996). Petitioner

concedes that, in 1989, rape was a crime involving moral turpitude. In 1996, when

IIRIRA repealed that form of relief, only about eight years had passed since his

conviction. He was, therefore, ineligible for suspension of deportation both at the

time he was convicted and at the time that IIRIRA took effect. Petitioner lost only

the opportunity to become eligible for suspension of deportation under INA

§ 244(a)(2) with the passage of IIRIRA. Under Valencia-Alvarez v. Gonzales, 469

F.3d 1319, 1328 (9th Cir. 2006), such a loss of opportunity for eligibility does not


                                           3
establish the impairment of a vested right. It is, therefore, not impermissibly

retroactive to deny Petitioner eligibility for discretionary relief under the repealed

statute.

       Petition DENIED.




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