     Case: 10-60947     Document: 00511617650         Page: 1     Date Filed: 09/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 29, 2011
                                     No. 10-60947
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANTONIO DE JESUS NAVA-ALMAGUER,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A041 859 583


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioner, Antonio De Jesus Nava-Almaguer, a native and citizen of
Mexico, seeks review of the Board of Immigration Appeals’ (BIA) dismissing his
appeal of an order of removal. The BIA dismissed the appeal due to Nava’s prior
conviction of an aggravated felony. Our jurisdiction is limited to colorable
constitutional issues and questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D).
        Nava contends his prior conviction for aggravated assault with a deadly
weapon was not an “aggravated felony” because his entire sentence was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-60947

suspended. He asserts that 8 U.S.C. § 1101(a)(43)(F) (definition of “aggravated
felony”) requires one to serve a sentence of one year. Because the question
whether Nava has committed an aggravated felony is a legal one, we have
jurisdiction to review his petition; it’s reviewed de novo. E.g., Dale v. Holder, 610
F.3d 294, 297 (5th Cir. 2010).
      The term “aggravated felony” is defined in § 1101(a)(43)(F) as “a crime of
violence . . . for which the term of imprisonment [is] at least one year”. “Any
reference to a term of imprisonment or a sentence with respect to an offense is
deemed to include the period of incarceration or confinement ordered by a court
of law regardless of any suspension of the imposition or execution of that
imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B)
(emphasis added).
      Therefore, if the sentencing court imposes a sentence of imprisonment, and
then suspends it, the sentence nevertheless counts under § 1101(a)(43)(F) for
determining whether the term of imprisonment was at least one year. United
States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir.), cert. denied, 130 S.
Ct. 192 (2009). Nava’s five-year suspended sentence meets the required term of
imprisonment to constitute an aggravated felony.
      Nava contends his ineligiblity for relief from removal, pursuant to 8 U.S.C.
§ 1182(h), violates his Fifth Amendment right to equal protection of the laws.
Although our court lacks jurisdiction to review the denial of a waiver of
inadmissibility under § 1182(h), we do have jurisdiction “to review the question
of law presented by [a] challenge to the BIA’s construction of [§ 1182(h)]”.
Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008). An alien’s equal-
protection challenge arises under the Fifth Amendment’s Due Process Clause.
E.g., Malagon de Fuentes v. Gonzales, 462 F.3d 498, 502-03 & n.7 (5th Cir. 2006).
An equal-protection challenge in this context is subject to rational-basis review.
Flores-Ledezma v. Gonzales, 415 F.3d 375, 381 (5th Cir. 2005).



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                                  No. 10-60947

      In Malagon de Fuentes, 462 F.3d at 506, petitioner maintained, as does
Nava, that it was an equal-protection violation for the law to distinguish
between lawful permanent residents (LPRs), such as Nava, and aliens who
entered the country illegally, for the purpose of § 1182(h) waiver eligibility. Our
court noted: “Every one of our sister courts to have addressed this question have
upheld § 1182(h)’s apparent favoring of non-LPRs against equal protection
attack”. Id. We agreed with those courts that Congress’ distinction between
LPRs and inadmissible aliens for § 1182(h) waiver eligibility has a rational
basis. Id. Accordingly, Nava’s equal-protection contention fails.
      Citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Nava contends his
conviction for aggravated assault is invalid because he was not properly advised
of the immigration consequences of his guilty plea. He asserts he has filed a writ
of habeas corpus in the criminal court on this basis, and he could not have
brought this claim before the BIA because it was not available until after 31
March 2010, when Padilla was decided.
      We lack jurisdiction to address this claim, due to Nava’s conceded failure
to exhaust his remedies before the BIA. 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft,
260 F.3d 448, 452-53 (5th Cir. 2001).
      DENIED.




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