                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________            U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   March 20, 2008
                                No. 07-12932                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                              BIA No. A17-700-472

OSIRIS HUMBERTO IBANEZ,


                                                                          Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                                (March 20, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Petitioner Osiris Ibanez, with the assistance of counsel, petitions for review
of the Board of Immigration Appeals’s (“BIA”) decision to affirm the Immigration

Judge’s order that he was ineligible for a waiver of removal under former

Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed).

Ibanez was found to be removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii) because he was a criminal alien. Ibanez argues that the BIA

should have held his case in abeyance or remanded for further fact finding based

on a pending Freedom of Information Act request. Ibanez also argues that the

repeal of § 212(c) relief for aliens convicted after a jury trial has an impermissible

retroactive effect. Finally, Ibanez argues that distinguishing between aliens who

pled guilty and aliens convicted after a jury trial violates his right to equal

protection and due process.

      “We review de novo whether we have subject-matter jurisdiction.” Arias v.

U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). In addition, we review

questions of law de novo, with appropriate deference to the BIA’s reasonable

interpretation of the statute in question. See Sarmiento Cisneros v. U.S. Att’y Gen.,

381 F.3d 1277, 1279-80 (11th Cir. 2004) (citing Chevron U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2782 (1984)).

However, no deference is owed to the agency when the interpretation of the statute

involves the retroactive application of the statute. Id. at 1280. Finally, we review

constitutional claims de novo. Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d
                                            2
1314, 1316 (11th Cir. 2006).

      We first conclude that we lack jurisdiction to address Ibanez’s claim that the

Board should have granted his request to hold the administrative proceedings in

abeyance. This court may not review “any final order of removal against an alien

who is removable by reason of having committed a criminal offense covered in” 8

U.S.C. § 1227(a)(2)(A)(iii), that is, an alien removable for an aggravated felony

offense. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). The only exception to the

jurisdictional bar is that we may review constitutional claims and questions of law.

INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

      Because Ibanez is removable due to his convictions for aggravated felony

drug offenses, we conclude that judicial review of the Board’s discretional denial

of his request to abate the proceedings is barred. See Jean-Pierre v. U.S. Atty.

Gen., 500 F.3d 1315, 1320 (11th Cir. 2007).

      Ibanez next argues that he had an expectation of the availability of a §

212(c) waiver when he went to trial in Tennessee, and that the waiver should

remain available to him, notwithstanding Congress’s repeal of § 212(c) in 1986.

He is wrong. In INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), the Supreme

Court held that the provisions that repealed discretionary relief from deportation

under § 212(c) do not apply retroactively to an alien who pleaded guilty to criminal

charges, in reliance on the possibility of § 212(c) relief, prior to the enactment of
                                           3
the repealer provisions. St. Cyr, 533 U.S. at 326, 121 S. Ct. at 2293. If an alien

pleaded guilty or nolo contendere to certain crimes before April 1, 1997, he may

file a motion to reopen his deportation proceedings in order to seek § 212(c) relief.

8 C.F.R. § 1003.44. An alien is ineligible for § 212(c) relief if he was convicted of

an aggravated felony, unless he was convicted between 1990 and 1996 and served

less than five years of his sentence, or he was convicted pursuant to a guilty plea

before 1990. Id. at §§ 1003.44(c), 1212.3(f)(4)(i)-(ii).

      In Alexandre v. U.S. Att’y. Gen., 452 F.3d 1204 (11th Cir. 2006), we

concluded that § 212(c) relief is not available to aliens who were convicted after a

trial instead of on a guilty plea. Alexandre, 452 F.3d at 1207. Moreover, we have

noted as consistent with St. Cyr, the distinction between aliens who pleaded guilty

and those who proceeded to trial. See Brooks v. Ashcroft, 283 F.3d 1268, 1274

(11th Cir. 2002).

      The overwhelming majority of circuit courts have held that there is no

impermissible retroactive effect in § 212(c) relief which is not granted to someone

who went to trial, because the person did not detrimentally rely on the availability

of relief. Accordingly, we reject Ibanez’s argument that he had an expectation of

the availability of § 212(c) waiver.

      Finally, we reject Ibanez’s contention that distinguishing between aliens

who are convicted after a trial and aliens who plead guilty violates his right to due
                                           4
process or equal protection. See Brooks, 283 F.3d at 1274 (citing Fernandez-

Bernal v. Att’y Gen. of the U.S., 257 F.3d 1304, 1312 (11th Cir. 2001)).

       For the above-stated reasons, we DISMISS the petition in part, and DENY

the petition in part.




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