                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit                 April 27, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60210


                      SAMARJEET SINGH SIDHU,

                                                         Petitioner,


                              VERSUS


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

                                                         Respondent.




                  Petition for Review of Orders
               of the Board of Immigration Appeals
                          (A38 007 490)


Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

      Petitioner Samarjeet Singh Sidhu (“Sidhu”) filed a petition

for review with this Court, asking us to review two decisions of

the Board of Immigration Appeals (“BIA”). The first concluded that

Sidhu is removable and ineligible for relief from removal under the

Immigration and Nationality Act (“INA”) because he was convicted of

an “aggravated felony” as defined therein, and the second concluded



  *
   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opinion should not be published and is not precedent except under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.
that he is not eligible for a waiver of inadmissibility under

former section 212(c) of the INA pursuant to INS v. St. Cyr, 533

U.S. 289 (2001), because his conviction was the result of a jury

trial rather than a guilty plea. Sidhu argues that he is not

removable as an aggravated felon because his conviction did not

have as an element “loss to the victim or victims” in excess of

$10,000, as charged by the Immigration and Naturalization Service

(“INS”), and that even if he is removable, he is nonetheless

eligible for a waiver of inadmissibility under former section

212(c) because a guilty plea is not a prerequisite to relief

pursuant to St. Cyr. Respondent Alberto R. Gonzales (“Gonzales”)

moved to dismiss the petition for review for lack of jurisdiction.

That motion was carried with the case. Because we find that Sidhu’s

claims present questions of law, we have jurisdiction to consider

the petition for review and the motion to dismiss is denied;

however, we ultimately deny the petition for review because the BIA

properly classified Sidhu’s prior conviction as an aggravated

felony and correctly held that Sidhu is not eligible for former

section 212(c) relief.

                                I.

     Sidhu was admitted to the United States as a lawful permanent

resident in 1984. In 1996, Sidhu was convicted by a jury of

conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341

and 371; aiding and abetting mail fraud in violation of 18 U.S.C.


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§§       1341   and   2;   and   making    material    false,   fictitious,    and

fraudulent statements to federal investigators in violation of 18

U.S.C. § 1001. The conviction was based on Sidhu’s participation in

a fraudulent billing scheme that was alleged in Count 1 of the

indictment to have resulted in “approximately $1.2 million in

fraudulent billings in 1993 and 1994.” The jury found Sidhu guilty

on that count, among others.

          In 1999, Sidhu was charged by the INS with being subject to

removal as an aggravated felon under section 237(a)(2)(A)(iii) of

the INA, 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the INS

charged that Sidhu was removable because he was convicted of an

“aggravated felony” as defined in subsections 101(a)(43)(M)(i) and

(U), 8 U.S.C. § 1101(a)(43)(M)(i), (U).2 Sidhu admitted through

counsel all of the factual allegations, except the allegation that

his conviction involved a “loss to the victim or victims” in excess

of $10,000. On April 18, 2001, by written decision, the Immigration

Judge      (“IJ”)     found   Sidhu   subject   to    removal   as   charged   and

ineligible        for   relief   from     removal.    Sidhu   appealed   the   IJ’s

decision to the BIA and also submitted a supplemental brief arguing

that he was eligible for relief under former section 212(c) of the

INA pursuant to the newly decided St. Cyr. The BIA dismissed


     2
   Subsection (M)(i) defines an aggravated felony as “an offense
that involves fraud or deceit in which the loss to victim or
victims exceeds $10,000,” and subsection (U) defines an aggravated
felony as “an attempt or conspiracy to commit an offense described
in [§ 1101(a)(43)].” 8 U.S.C. § 1101(a)(43)(M)(i), (U).

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Sidhu’s appeal, adopting the IJ’s reasoning that because the jury

found Sidhu guilty on Count 1 of the indictment, he was necessarily

convicted of an aggravated felony as described in subsections

101(a)(43)(M)(i) and (U) of the INA. However, finding St. Cyr’s

scope unclear under a pending regulation, the BIA remanded Sidhu’s

case to the IJ for consideration of whether he was eligible for

former section 212(c) relief. On remand, the IJ granted Sidhu a

waiver of inadmissibility under former section 212(c), and the

Department of Homeland Security (formerly the INS) appealed the

IJ’s decision. The BIA found on appeal that Sidhu was not eligible

for   former   section   212(c)   relief   because   St.   Cyr’s   rule   of

retroactivity was not applicable to aliens like Sidhu who were

convicted by a jury and no relevant regulation broadened the scope

of that rule. The BIA ordered Sidhu removed from the United States

to Canada. Sidhu timely petitioned for review.

                                   II.

      This Court reviews questions of law as to jurisdiction de

novo. Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).

The REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), “amends

8 U.S.C. § 1252(a)(2)(C) to preclude all judicial review, habeas or

otherwise, where a removal order is based on, inter alia, the

alien’s commission of an aggravated felony.” Hernandez-Castillo,

436 F.3d at 519. However, “[t]he Act also altered the INA to

provide that ‘[n]othing in subparagraph . . . (C) [of 8 U.S.C.


                                    4
§ 1252(a)(2)] . . . shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition

for review filed with an appropriate court of appeals in accordance

with this section.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)) (first

alteration in original). Because both of Sidhu’s claims--that his

prior conviction does not qualify as an “aggravated felony” and

that he is eligible for former section 212(c) relief--involve

questions of law, we have jurisdiction to consider his petition for

review. See Rodriquez-Castro v. Gonzales, 427 F.3d 316, 319 (5th

Cir. 2005); Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th

Cir. 2006). We review questions of law de novo, deferring to the

BIA’s   interpretation   of   immigration   regulations   if   that

interpretation is reasonable. Hernandez-Castillo, 436 F.3d at 519.

     Having carefully reviewed the record, the briefs, and the oral

argument of the parties, we affirm the BIA’s decision that Sidhu is

removable as an aggravated felon essentially for the reasons stated

by the BIA. We also affirm the BIA’s decision that Sidhu is not

eligible for former section 212(c) relief pursuant to St. Cyr. In

Hernandez-Castillo, filed after the BIA issued its decision, we

decided that a guilty plea is a necessary condition to former

section 212(c) relief under St. Cyr. Hernandez-Castillo, 436 F.3d

at 519-20. Sidhu was convicted following a jury trial; therefore,

he is ineligible for former section 212(c) relief. Id.

     Accordingly, the motion to dismiss for lack of jurisdiction is


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DENIED; and the petition for review is also DENIED.




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