                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 14 2013

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




                            FOR THE NINTH CIRCUIT



JUAN RETANA, AKA Juan Manuel                     No. 11-71052
Herrera,
                                                 Agency No. A075-758-391
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                            Submitted January 8, 2013 **
                               Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and HELLERSTEIN,
Senior District Judge.***



        *
             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).
        ***
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                          1
      Petitioner Juan Retana (Retana) challenges his order of removal and the

Bureau of Immigration Appeal’s denial of withholding relief due to his conviction

for assault with a deadly weapon (ADW), an aggravated felony, in violation of

California Penal Code § 245(a)(1).




      1.     Conviction of an aggravated felony renders an alien removable and

statutorily ineligible for asylum under 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B). The

aggravated felony conviction further bars eligibility for withholding of removal if

the crime is deemed “particularly serious.” Lopez-Cardona v. Holder, 662 F.3d

1110, 1112 (9th Cir. 2011). Retana concedes that his conviction constitutes an

aggravated felony, but challenges the particularly serious crime finding.




      2.     We have been stripped of jurisdiction to hear petitions from final

orders of removal when such removal is premised on commission of certain

crimes, including aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C)

(“Notwithstanding any other provision of law . . . and except as provided by

subparagraph (D), no court shall have jurisdiction to review any final order of

removal against an alien who is removable by reason of having committed [certain

crimes, including aggravated felonies].”). This jurisdictional bar is lifted with


                                           2
regard to constitutional or legal challenges to removal or if denial of relief is “on

the merits . . . rather than in reliance on the conviction.” Pechenkov v. Holder, 705

F.3d 444, *3 (9th Cir. 2012) (emphasis and citation omitted).




      3.     Retana impermissibly seeks a re-weighing of the IJ’s factual

evaluation of his aggravated felony conviction. He notes, for example, that “the

nature of the crime and the underlying circumstances” indicate that his ADW was

not particularly serious. Retana never alleges that the IJ relied on incorrect legal

standards or violated his constitutional rights. The provisions of 8 U.S.C. §

1252(a)(2)(C) deprive us of jurisdiction to review Retanta’s challenge. See

Pechenkov, 705 F.3d at *4 (holding that § 1252(a)(2)(C) barred review of the IJ’s

finding that petitioner’s aggravated felony conviction was a particularly serious

crime where petitioner sought only “a re-weighing of the factors involved in [the

IJ’s] discretionary determination”).

      PETITION DISMISSED.




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