          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                December 21, 2007
                                 No. 06-60181
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

EFRAIN SILLERO-GALINDO

                                            Petitioner
v.

MICHAEL B. MUKASEY, US ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A39 791 874


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Efrain Sillero-Galindo (Sillero) seeks review of the order of the Board of
Immigration Appeals (BIA) concluding that he is ineligible for a § 212(c)
discretionary waiver of removal. The BIA concluded that, because Sillero had
a prior aggravated felony conviction, Sillero was ineligible for relief pursuant to
8 C.F.R. § 1212.3(h)(2), as well as 8 C.F.R. § 1212.3(f)(5). Because Sillero has
challenged the determination that he was convicted of an aggravated felony, a
question pertinent to both issues, and because he generally argues entitlement
to § 212(c) relief, we will address the merits of both bases of the BIA’s decision.

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 06-60181

      With respect to § 1212.3(h)(2), the only argument that can be construed as
pertinent to this provision is that Sillero was not convicted of an aggravated
felony. Each of the reasons proffered lacks merit. First, Sillero’s contention that
because the sentence imposed was suspended, there was no conviction, was not
raised before the BIA. Thus, we do not consider it. See Roy v. Ashcroft, 389 F.3d
132, 136 (5th Cir. 2004). In any event, Sillero is incorrect because a sentence or
term of imprisonment includes any sentence of confinement regardless of
suspension or all or part of the sentence. See 8 U.S.C. § 1101(a)(48)(B).
      Sillero also failed to exhaust his argument that sexual abuse of a minor
was not a deportable offense at the time of his plea on June 28, 1996. See Roy,
389 F.3d at 136. In any event, the argument lacks merit because the amended
definition of aggravated felony, which includes sexual abuse of a minor, applies
retroactively. See Garrido-Morato v. Gonzalez, 485 F.3d 319, 324 (5th Cir. 2007).
      Finally, for the first time in his reply brief, Sillero asserts that for
purposes of § 1212.3(h)(2), it is the date of the plea, not the date of the
conviction, that controls. Sillero did not make this argument in his opening
brief, and this court need not consider it. See United States v. Hoster, 988 F.2d
1374, 1383 (5th Cir. 1993) (appeals court need not consider arguments raised for
the first time in a reply brief). Moreover, the record shows that the plea was
entered on June 28, 1996, within the relevant period. Sillero’s argument thus
lacks merit.   Sillero has shown no error in the BIA’s conclusion that §
1212.3(h)(2) precludes relief. Thus, we need not reach the BIA’s alternative
holding that § 1212.3(f)(5) also precludes relief.
      Sillero’s argument that the BIA lacked authority to enter an order of
removal in the first instance also lacks merit. See Avilez-Granados, 481 F.3d at
872 (“the BIA has authority to issue an order of removal in the first instance
once the IJ has determined that an alien is removable”). Finally, we need not
remand this case to the BIA to consider Sillero’s request for adjustment of
status. Sillero already has presented this request to the BIA, and the BIA

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already has rejected it because, as discussed above, § 1212.3(h)(2) precludes him
from obtaining the necessary waiver. See Avilez-Granados, 481 F.3d at 872-73
(remanding because BIA had not previously considered adjustment of status).
      For the foregoing reasons, the petition for review is DENIED.




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