                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 06-1372

                             TENISON CLARKE,

                                Petitioner,

                                      v.

                         ALBERTO GONZALES,
              Attorney General of the United States,

                                Respondent.


                ON PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                                   Before

                         Lynch, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                      and Lipez, Circuit Judge.



     Kevin R. Murphy on brief for petitioner.
     Richard Zanfardino, Trial Attorney, Peter D. Keisler,
Assistant Attorney General, and Greg D. Mack, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.



                            October 18, 2006
              Per Curiam.      Tenison Clarke, a native of Barbados, was

ordered removed from this country by an Immigration Judge on July

23,   2004.      Clarke      was    found    removable    on   the    basis    of   his

conviction       of     an         aggravated      felony,      see      8     U.S.C.

§ 1227(a)(2)(A)(iii), that is, his February 7, 1986 conviction in

state court of the crime of rape and abuse of a child, see Mass.

Gen. Laws ch. 265, § 23.

              The Board of Immigration Appeals (BIA) affirmed the order

of removal on January 30, 2006.               The BIA agreed with the IJ that

Clarke was removable as an aggravated felon and that Clarke was

ineligible     for    waiver       of   inadmissibility    under     §   212   of   the

Immigration and Naturalization Act.               It held there was no error in

the IJ's denial of Clarke's motion to terminate proceedings to

permit him to pursue a naturalization application (on the grounds

that he was not prima facie eligible for naturalization and his

lack of good moral character disqualified him as well).

              Clarke had been charged with removability in a Notice to

Appear, served on him on February 2, 2001.               This date subjected him

to the terms of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.

3009.   See Choeum v. INS 129 F.3d 29, 37 (1st Cir. 1997).

              On petition for review in this court, Clarke purports to

make a constitutional argument.                   The respondent appropriately

agrees that this court has jurisdiction over that argument under 8


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U.S.C. § 1252(a)(2)(D), although normally there is a jurisdictional

bar to review of aggravated felony determinations under 8 U.S.C.

§ 1252(a)(2)(C).

              Clarke concedes that his crime is defined by IIRIRA as an

aggravated felony.        He argues1 that this does not show that

Congress intended to render him removable and that such a result

would    be   unconstitutional   because   he   would   then   be   treated

differently from similarly situated felons who were placed into

removal proceedings before September 30, 1996 and were still

eligible for waiver of inadmissibility.

              Clarke's claims are foreclosed by this court's decision

in Sena v. Gonzales, 428 F.3d 50, 52-53 (1st Cir. 2005), and our

earlier decisions in Choeum, 129 F.3d at 37, Seale v. INS, 323 F.3d

150, 157-59 (1st Cir. 2003), and Sousa v. INS, 226 F.3d 28, 33-34

(1st Cir. 2000).

              Counsel for Clarke cited none of these obviously relevant

cases.    Counsel should not repeat such omissions in any future

briefs submitted to this court.

              The petition for review is denied.    So ordered.




     1
          He does not petition for review of the naturalization
portion of the BIA's opinion.

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