                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 24 2010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



MARIANO DE AVILA-BARBOSA,                         No. 05-73285

               Petitioner,                        Agency No. A038-516-214

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Mariano De Avila-Barbosa, 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 under 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).
§ 1252. We review de novo questions of law and constitutional claims, Khan v.

Holder, 584 F.3d 773, 776 (9th Cir. 2009), and we deny the petition for review.

      De Avila-Barbosa does not challenge the agency’s determination that he is

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 1995 conviction for

lewd or lascivious acts with a child under 14 years of age in violation of California

Penal Code § 288(a).

      The BIA determined that De Avila-Barbosa is ineligible for relief under

former section 212(c), 8 U.S.C. § 1182(c) (repealed 1996), because his ground of

removability lacks a statutory counterpart in a ground of inadmissibility. See

8 C.F.R. § 1212.3(f)(5). De Avila-Barbosa’s legal and retroactivity challenges to

this determination are unavailing. See Abebe v. Mukasey, 554 F.3d 1203, 1207,

1208 n.7 (9th Cir. 2009) (en banc); see also Aragon-Ayon v. INS, 206 F.3d 847,

853 (9th Cir. 2000) (“We are satisfied that Congress intended the 1996

amendments to make the aggravated felony definition apply retroactively to all

defined offenses whenever committed.”).

      Because the determination of ineligibility is dispositive, we do not reach De

Avila-Barbosa’s remaining contentions.

      PETITION FOR REVIEW DENIED.




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