                                                                            FILED
                             NOT FOR PUBLICATION                             APR 01 2010

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




                             FOR THE NINTH CIRCUIT



 JORGE ANAYA-FERNANDEZ,                          No. 06-74313

               Petitioner,                       Agency No. A014-680-851

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

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Jorge Anaya-Fernandez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C.



          *
             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).

IH/Research
§ 1252. We review de novo constitutional questions and questions of law,

Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003), and we deny the

petition for review.

         The agency properly concluded that Anaya-Fernandez is ineligible for

§ 212(c) relief with respect to his 2001 convictions. See 8 C.F.R. § 1212.3(h)(3)

(“Section 212(c) relief is not available with respect to convictions arising from plea

agreements made on or after April 1, 1997.”); see also United States v.

Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002) (“To the extent [an alien]

anticipated the continued availability of § 212(c) relief after [1996], his

expectations were neither reasonable nor settled under [INS v. St. Cyr, 533 U.S.

289 (2001)].”).

         Anaya-Fernandez’s contention that the expanded aggravated felony

definition contained in section 321 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”) cannot be applied to his pre-

IIRIRA convictions is foreclosed. See Alvarez-Barajas v. Gonzales, 418 F.3d

1050, 1054 (9th Cir. 2005) (IIRIRA’s amendment of the definition of aggravated

felony applies to convictions entered “before, on, or after” IIRIRA’s enactment

date).




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        The agency concluded that Anaya-Fernandez’s 1976 conviction for sale of a

controlled substance in violation of California Health & Safety Code § 11379 was

a drug-trafficking aggravated felony under IIRIRA’s amended definition. Anaya-

Fernandez waived review of this determination by failing to challenge it in his

opening brief to this court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th

Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are

waived). The agency therefore properly concluded that Anaya-Fernandez is

statutorily ineligible for cancellation of removal as an alien who has been

“convicted of any aggravated felony,” 8 U.S.C. § 1229b(a)(3), because even if

Anya-Fernandez were granted a waiver of his 1976 conviction under § 212(c) it

would nonetheless remain an aggravated felony for purposes of precluding his

application for cancellation of removal, see Becker v. Gonzales, 473 F.3d 1000,

1004 (9th Cir. 2007).

          Anaya-Fernandez’s due process claims are unpersuasive. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process violation).

        Anaya-Fernandez’s remaining contentions are unpersuasive.

        PETITION FOR REVIEW DENIED.




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