     Case: 09-60790     Document: 00511242620          Page: 1    Date Filed: 09/23/2010




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

                                                 FILED
                                                                        September 23, 2010
                                     No. 09-60790
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FAUSTO CASTANEDA-SANCHEZ,

                                                   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. A017 304 343


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Petitioner Fausto Castaneda-Sanchez (Castaneda), a native and citizen of
Mexico, was admitted to the United States as a lawful permanent resident in
1966. In 1979, Castaneda pleaded guilty to conspiracy to transport illegal aliens
within the United States by means of a motor vehicle, and he was sentenced to
three years probation. In 2007, the Department of Homeland Security instituted
removal proceedings against Castaneda. An immigration judge (IJ) determined
that Castaneda was subject to removal and denied Castaneda’s request for a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60790

waiver of deportability under former § 212(c) of the Immigration and Nationality
Act (INA), which, prior to its repeal, was codified at 8 U.S.C. § 1182(c). The IJ
ordered Castaneda removed to Mexico. The Board of Immigration Appeals (BIA)
dismissed Castaneda’s appeal. Castaneda filed a timely petition for review in
this court.
      Pursuant to 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider
challenges to a removal order based on the commission of an aggravated felony.
See Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006).
Nevertheless, no jurisdiction-stripping provision of the INA “shall be construed
as precluding review of constitutional claims or questions of law raised on a
petition for review.” 8 U.S.C. § 1252(a)(2)(D); Hernandez-Castillo, 436 F.3d at
519. The substantive issues raised by Castaneda in this court challenge the
BIA’s legal determinations that Castaneda was not eligible for a waiver of
deportability under former INA § 212(c) because (1) the ground for his removal
did not have an inadmissibility statutory counterpart, and (2) the statutory
counterpart requirement is impermissibly retroactive. Consequently, we have
jurisdiction to consider Castaneda’s petition for review. See Brieva-Perez v.
Gonzales, 482 F.3d 356, 359 (5th Cir. 2007).
      Castaneda contends that the BIA erred by ruling that 8 U.S.C.
§ 1182(a)(6)(E)(i) is not the statutory counterpart to 8 U.S.C. § 1101(a)(43)(N).
The BIA so ruled because (1) the statutory subsections used dissimilar language,
(2) 8 U.S.C. § 1101(a)(43)(N) included offenses concerning aliens who were
already in the United States while 8 U.S.C. § 1182(a)(6)(E)(i) did not, and (3) 8
U.S.C. §      1182(a)(6)(E)(i) was   the       statutory   counterpart   of   8   U.S.C.
§ 1227(a)(1)(E)(i).
      The BIA properly applied its comparability analysis based on the
dissimilarity in the language used in 8 U.S.C. § 1101(a)(43)(N) and 8 U.S.C.
§ 1182(a)(6)(E)(i) and because 8 U.S.C. § 1182(a)(6)(E)(i) was more comparable
to 8 U.S.C. § 1227(a)(1)(E)(i). See Leon-Medina v. Holder, 351 F. App’x 881 (5th

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                                No. 09-60790

Cir. 2009); Popoca v. Holder, 320 F. App’x 252, 253-59 (5th Cir. 2009).
Accordingly, Castaneda is statutorily ineligible for relief under 8 U.S.C.
§ 1182(c).
      Castaneda also contends that the BIA’s statutory-counterpart requirement
is impermissibly retroactive. This argument is unavailing. Vo v. Gonzales, 482
F.3d 363, 369-71 (5th Cir. 2007). Consequently, Castaneda’s petition for review
is DENIED.




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