                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CARLOS EDGAR MOLINA,                            No.    15-71625

                Petitioner,                     Agency No. A035-982-742

 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM *
General,

                Respondent.

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

                       Argued and Submitted May 12, 2017
                              Pasadena, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and DONATO,** District
Judge.

      Carlos Edgar Molina, a native and citizen of Colombia, petitions for review

of the Board of Immigration Appeals’ dismissal of his appeal from an Immigration

Judge’s decision denying his applications for relief. Molina has never disputed and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
he does not now dispute that he was in fact removable on the basis of his 1982

conviction for Lewd Acts Upon a Child Under Fourteen Years of Age in violation

of California Penal Code Section 288, which he acknowledges constituted a crime

involving moral turpitude under Section 237(a)(2)(A)(i) of the Immigration and

Nationality Act (INA). 8 U.S.C. § 1227(a)(2)(A)(i). We have jurisdiction under 8

U.S.C. § 1252 except as to Molina’s challenge to the BIA’s discretionary denial of

relief under former Section 212(c) of the INA, and we deny the petition.

      Molina asserts that the BIA erred when it found no reversible error in the

Immigration Judge’s decision that he was not credible, but this is an illusory

argument. The BIA did not rely on the IJ’s adverse credibility finding, and to the

extent it mentioned Molina’s credibility at all, the BIA assumed he was credible

for purposes of its decision.

      Molina next argues that the BIA erred in finding that he was ineligible for a

waiver of inadmissibility under Section 212(h) (and therefore also for an

adjustment of status under Section 245(a)), because his 1982 conviction could not

properly be considered an “aggravated felony” under the INA. He relies on

Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), for that position, but

his reliance is misplaced. While Ledezma-Galicia held that an alien could not be

rendered removable by reason of a sexual abuse of a minor conviction that

occurred prior to November 18, 1988 (the effective date of the Anti-Drug Abuse


                                          2
Act of 1988), 636 F.3d at 1080, it did not speak to whether or not the pre-ADAA

offense could still be characterized as an “aggravated felony” for purposes of

precluding relief from removability. Ledezma-Galicia in fact recognized that the

classification of a crime as an aggravated felony is a separate issue from

removability for that crime, 636 F.3d at 1065, and it left intact the settled law in

our circuit that a conviction that pre-dates November 1988 may nevertheless be

considered an “aggravated felony” under current immigration law. See Lopez-

Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir. 2006); Becker v. Gonzales,

473 F.3d 1000, 1002 (9th Cir. 2007); see also Alvarez-Barajas v. Gonzales, 418

F.3d 1050, 1054-55 (9th Cir. 2005) (holding that Section 212(h)’s aggravated

felony bar applies retroactively). The BIA consequently did not err in finding

Molina ineligible for a Section 212(h) waiver (and in turn for an adjustment of

status under Section 245(a)) because his 1982 conviction under California Penal

Code Section 288 constituted an aggravated felony.

      We decline to review for lack of jurisdiction Molina’s challenge to the

BIA’s discretionary denial of relief to him under former Section 212(c) of the INA.

Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007).

      We conclude that the BIA’s decision to deny deferral of deportation under

the Convention Against Torture was amply supported by substantial evidence, as

the BIA pointed to “such relevant evidence as reasonable minds might accept as


                                           3
adequate to support it, even if it is possible to reach a contrary result on the basis of

the evidence.” Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005).

This evidence included the fact that despite Molina’s claim that he was raped by a

police officer in Colombia on two occasions when he was 7 (i.e., roughly 65 years

ago), he has since returned to the country three times and was not tortured.

      PETITION FOR REVIEW DENIED.




                                           4
