                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 01 2011

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




                            FOR THE NINTH CIRCUIT



EDGAR ESTEBAN PEREZ-                             No. 06-75591
HERNANDEZ,
                                                 Agency No. A074-795-156
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, JR., Attorney General,

              Respondent.



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

                      Argued and Submitted February 11, 2011
                               Pasadena, California

Before:       TASHIMA and FISHER, Circuit Judges, and WOLF, District Judge.**


       We dismiss as moot Petitioner’s challenge to the finding of the Board of

Immigration Appeals (the “BIA”) that he is inadmissible as an “alien who the

consular officer or the Attorney General knows or has reason to believe . . . is or

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
has been an illicit trafficker in any controlled substance.” INA § 212(a)(2)(C), 8

U.S.C. § 1182(a)(2)(C); see also INA § 101(a)(13)(C)(v), 8 U.S.C. §

1101(a)(13)(C)(v). However, on the question of Petitioner’s eligibility for

cancellation of removal under INA § 240A, 8 U.S.C. § 1229b, we REMAND to the

BIA for further proceedings.

      1.     Petitioner contends that the BIA erred in finding that there was reason

to believe that he had been an illicit trafficker in a controlled substance. Even

assuming, however, that the BIA erred on this point, Petitioner will remain

inadmissible as a result of the BIA’s uncontested finding that he has been

convicted of a crime of moral turpitude. See INA § 212(a)(2)(A)(i)(I), 8 U.S.C. §

1182(a)(2)(A)(i)(I). Petitioner is correct that the BIA’s finding that he is a drug

trafficker could affect his eligibility for cancellation of removal, see INA §

240A(a)(3), 8 U.S.C. § 1229b(a)(3), if that finding is the but-for cause of a

determination that he has been convicted of an aggravated felony. However, no

such determination has been made, and Respondent has not urged such a

determination upon us or the agency. We cannot grant Petitioner effective relief on

this claim, and therefore this claim must be dismissed as moot. See Johnson v.

Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1018 (9th Cir. 2010).




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      2.     Petitioner brings an equal protection challenge to INA § 240A(c)(6), 8

U.S.C. § 1229b(c)(6) (hereinafter “§ 1229b(c)(6)”). Petitioner’s rights are affected

by that provision only if he otherwise would be eligible for cancellation of removal

pursuant to the other provisions of INA § 240A, 8 U.S.C. § 1229b (hereinafter “§

1229b”). The parties have raised before this court issues of fact and law, which

were not raised before or decided by the agency, regarding whether Petitioner

meets the residency requirements of INA § 240A(a), 8 U.S.C. § 1229b(a). We lack

jurisdiction to hear Petitioner’s challenge to § 1229b(c)(6) if he does not meet the

baseline requirements of § 1229b(a). See Sang Yoon Kim v. Holder, 603 F.3d

1100, 1104 (9th Cir. 2010). Therefore, we remand to the BIA so that the BIA may

remand to the Immigration Judge for a determination as to whether Petitioner is

eligible for relief under § 1229b.1 On remand, the government may raise any



      1
              Respondent also argues that Petitioner’s failure to appeal to the BIA
the Immigration Judge’s finding that § 1229b(c)(6) bars him from relief strips us of
jurisdiction to hear his equal protection claim. This is an exhaustion argument in
the guise of a standing argument, and we do not find it convincing. We do not
require exhaustion of administrative remedies where pursuit of such remedies
would be “futile” because “it is ‘very likely’ what the result of recourse to [such]
remedies would be.” El Rescate Legal Servs., Inc. v. Exec. Office of Immigration
Review, 959 F.2d 742, 747 (9th Cir. 1991) (internal quotation marks omitted).
Here, Petitioner conceded before the Immigration Judge that he was ineligible for
relief because of § 1229b(c)(6) and plainly fell within the scope of that provision;
it would have been futile for him to argue before the BIA that it did not apply to
him.

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arguments it deems appropriate regarding Petitioner’s eligibility for such relief. If

the Immigration Judge and the BIA conclude that Petitioner is eligible when §

1229b(c)(6) is disregarded, but ineligible when it is considered, then at that point

we may have jurisdiction to hear Petitioner’s equal protection challenge to that

provision.

      The petition for review is

      DISMISSED in part and REMANDED in part.




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