                             NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       SEP 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 ROMINA PHILLIP-VALLADARES,                       No.    11-71395

                   Petitioner,                    Agency No. A095-720-371

   v.
                                                  MEMORANDUM*
 LORETTA E. LYNCH, Attorney General,

                   Respondent.

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

                           Submitted September 21, 2016**
                               Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and GORDON,*** District
Judge.
        Petitioner Romina Phillip-Valladares is a native and citizen of Argentina.
She was admitted into the United States on a visitor’s visa in August 1984. In
2003, Phillip-Valladares pleaded nolo contendre to grand theft in violation of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
California Penal Code § 487(a). The Department of Homeland Security issued
Notices to Appear charging Phillip-Valladares with inadmissibility under 8 U.S.C.
§ 1182(a)(6)(A)(i) and removability under 8 U.S.C. § 1227(a)(1)(B).
      Phillip-Valladares sought cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1). An immigration judge (“IJ”) denied Phillip-Valladares’s
application, finding that she was convicted of a crime involving moral turpitude for
which a sentence of one year or longer may be imposed. The IJ therefore
concluded that 8 U.S.C. § 1227(a)(2) applied, making her ineligible for
cancellation of removal regardless of whether she was eligible for the petty-offense
exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The Board of Immigration
Appeals (“BIA”) affirmed the IJ’s decision. Phillip-Valladares now appeals the
BIA’s decision. Reviewing de novo, we affirm.
      Phillip-Valladares argues that the BIA improperly relied on its panel
decisions in Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009), and Cortez
Canales, 25 I. & N. Dec. 301 (BIA 2010) because those decisions impermissibly
overturned BIA precedent. However, Phillip-Valladares never raised before the
BIA the issue of whether it had the authority to overrule its prior precedent.
Assuming that Phillip-Valladares is claiming that the BIA violated its own
regulation (8 C.F.R. §§ 1003.1(a)(5) & (h)) when it allegedly overruled prior BIA
precedent, we lack jurisdiction to hear the issue because it is unexhausted. See
Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004); 8 U.S.C. § 1252(d)(1). If
Phillip-Valladares is claiming a due-process violation, then we have jurisdiction to
hear the constitutional challenge. Barron, 358 F.3d at 678. Nevertheless, her
argument is without merit.
      Pursuant to 8 U.S.C. § 1229b(b)(1)(C), an alien is eligible for cancellation of
removal only if she “has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of [Title 8, United States Code].” Both

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Almanza and Cortez addressed an issue not raised in the BIA’s precedents:
whether an alien’s conviction for a crime involving moral turpitude that was
“described under” both § 1227(a)(2) and § 1182(a)(2), but which was subject to the
petty-offense exception under § 1182(a)(2)(A)(ii)(II), would nevertheless render
the alien ineligible for cancellation of removal. The BIA answered this question in
the affirmative, finding that a conviction for an offense “described under” §
1227(a)(2) would render an alien ineligible for cancellation of removal regardless
of whether the alien was eligible for the petty-offense exception to § 1182(a)(2).
To prove eligibility for cancellation, an alien must show that she has not been
convicted of an offense under any of the three sections listed in § 1229b(b)(1)(C).
Because this issue had not been resolved in prior BIA decisions, Almanza and
Cortez did not overrule BIA precedents.
      Nor do the Almanza and Cortez decisions constitute a change to the law that
would be impermissibly retroactive if applied to Phillip-Valladares. Rather, these
cases provided “further guidance” on how to analyze whether an alien has been
convicted of an offense described under §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)
for purposes of cancellation of removal under § 1229b(b)(1)(C). Cortez, 25 I. & N.
Dec. at 309. Phillip-Valladares cites no statute or case law holding that
clarification of the application of a preexisting law amounts to a change or repeal
of the law such that retroactive application would be an unconstitutional denial of
due process.
      Finally, Phillip-Valladares’ alleged reliance on the petty-offense exception
was unreasonable. Both at the time she pleaded guilty to grand theft and at the
time she applied for cancellation of removal, the law regarding the application of
the petty-offense exception to cancellations of removal under § 1229b(b)(1)(C)
was not settled in Phillip-Valladares’s favor. Thus, the BIA properly affirmed the



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IJ’s determination that Phillip-Valladares was ineligible for cancellation of
removal.
AFFIRMED.




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