                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 15 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



CARLOS MARTINEZ-RUIZ,                            No. 06-75244

              Petitioner,                        Agency No. A074-333-884

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

              Respondent.



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

                            Submitted February 11, 2011 **
                                Pasadena, California

Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.

       Carlos Martinez-Ruiz petitions for review of the Board of Immigration

Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) decision denying

his application for a waiver of inadmissibility and adjustment of status. We have



        *
             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).
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to review “constitutional claims

or questions of law.” See Mejia v. Gonzales, 499 F.3d 991, 998-99 (9th Cir. 2007).

We deny the petition for review.

      Martinez-Ruiz’s argument that applying 8 C.F.R. § 1212.7(d) to him has an

impermissible retroactive effect is foreclosed by Mejia, 499 F.3d at 997 (analyzing

identical regulation contained in 8 C.F.R. § 212.7(d)). “The regulation speaks only

to the exercise of discretion under § 212(h)(2), not to the threshold determination

of eligibility under § 212(h)(1). The Attorney General has not changed or altered

the statutory ‘extreme hardship’ standard. Instead, he has promulgated a regulation

to guide IJs in the way they exercise their relatively unfettered grant of discretion

after the statutory requirements are met.” Id. at 996 (citations omitted). Therefore,

applying Section 1212.7(d) to the petitioner “does not have an impermissibly

retroactive effect because it neither attaches a new disability to past conduct nor

upsets settled expectations.” Id. at 998.

      Martinez-Ruiz’s second argument fails as well. The BIA did not use an

incorrect legal standard in concluding that Martinez-Ruiz’s conviction constituted

a “violent or dangerous crime” subjecting him to a heightened hardship standard.

8 C.F.R. § 1212.7(d) (“The Attorney General, in general, will not favorably

exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) . . .


                                            2
with respect to immigrant aliens who are inadmissible under section 212(a)(2) of

the Act in cases involving violent or dangerous crimes, [unless] . . . an alien clearly

demonstrates that the denial of the application . . . would result in exceptional and

extremely unusual hardship.”). The BIA had no obligation to conduct a case-by-

case analysis of Petitioner’s offense under Matter of Frentescu, 18 I & N Dec. 244

(BIA 1982), where, as here, we have already determined that violations of

California Penal Code § 211 are categorically crimes of violence. See United

States v. McDougherty, 920 F.2d 569, 573 (9th Cir. 1990) (“We hold that robbery

under California law is [] by definition a crime of violence.”); see also Mejia, 499

F.3d at 999 (referring to “crimes of violence” is “not inconsistent with the statutory

standard” for “violent and dangerous” crimes).

PETITION DENIED.




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