                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                            DEC 02 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

HUGO ALEXANDER CHAVEZ,                           No. 05-74216

              Petitioner,                        Agency No. A092-893-423

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

              Respondent.


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

                            Submitted November 4, 2009**
                                Pasadena, California

Before: PREGERSON and GOULD, Circuit Judges, and BRIGHT, *** Senior
Circuit Judge.

       Hugo Alexander Chavez petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his motion to reopen pursuant to 8 C.F.R. § 1003.44.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
For the reasons stated below, we affirm the BIA’s denial of Chavez’s motion to

reopen.

      Chavez is a native and citizen of El Salvador and a lawful permanent

resident of the United States. In 1993, Chavez was convicted of grand theft auto

under California Penal Code § 487.3. Three years later, in 1996, Chavez was

convicted by guilty plea of possession of a controlled substance under California

Health & Safety Code § 11350.

      In 1997, an Immigration Judge (“IJ”) found Chavez deportable under former

Immigration and Nationality Act (“INA”) § 241(a)(2)(B)(i) because of his

controlled substance conviction, and on the basis that his grand theft auto

conviction amounted to an “aggravated felony” under former

INA § 241(a)(2)(A)(iii). In 1998, after Chavez withdrew all applications for relief

from deportation, the IJ ordered Chavez deported. Chavez appealed to the BIA on

the grounds that he should have been given some form of relief and that the IJ gave

the new aggravated felony definition impermissible retroactive effect. In 2003, the

BIA dismissed Chavez’s appeal. Chavez did not appeal that decision to this court.

      In 2005, Chavez filed a motion to reopen his case with the BIA pursuant to 8

C.F.R. § 1003.44. Section 1003.44 allows an alien to file special motion for relief

under former section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996), if the


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alien would otherwise have been eligible for section 212(c) relief but-for a

conviction obtained by plea agreement prior to April 1, 1997. 8 C.F.R. § 1003.44.

The BIA denied Chavez’s motion to reopen based on its findings that Chavez had

not shown that his controlled substance conviction had been dismissed under

California law and that under the statutory counterpart rule, Chavez was not

eligible for section 212(c) relief.

      In this appeal, Chavez argues that the BIA erred in denying his motion to

reopen on two bases. First, Chavez argues, the BIA erred because the record did

not support the IJ’s finding that Chavez’s grand theft auto conviction amounted to

an aggravated felony. Second, Chavez argues, the BIA erred because the BIA

based its denial on its finding that Chavez was ineligible for section 212(c) relief

under the statutory counterpart rule. This finding was an error, Chavez argues,

because the BIA gave the statutory counterpart rule unconstitutional retroactive

effect, the rule was ultra vires, the rule violated equal protection, and the rule was

arbitrary and capricious.

      This court does not have jurisdiction over Chavez’s grand theft auto

conviction argument because Chavez did not raise this argument to the BIA. See 8

U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

Consequently, this argument cannot serve as a basis for reversing the BIA’s denial


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of Chavez’s motion to reopen. Chavez’s statutory counterpart rule arguments

likewise cannot serve as a basis for reversing the BIA because these arguments

were addressed by and are foreclosed by Abebe v. Mukasey. 554 F.3d 1203, 1208

n.7 (9th Cir. 2009) (en banc) (citing Abebe v. Gonzales, 493 F.3d 1092, 1101–04

(9th Cir. 2007).

      For the foregoing reasons, Chavez’s petition for review is denied.

      DENIED.




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