                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 25 2010

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




                             FOR THE NINTH CIRCUIT



GABRIEL PONCE-RODRIGUEZ,                         No. 08-70059

               Petitioner,                       Agency No. A091-115-690

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

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Gabriel Ponce-Rodriguez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.

§ 1252. We review de novo questions of law and constitutional claims. Avila-


          *
             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).
Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir. 2007). We deny the petition

for review.

      Because Ponce-Rodriguez’s June 18, 1996, deportation order was lawful

when he was deported and the record reveals that his waiver of appeal of that order

was “considered and intelligent,” the BIA did not err in concluding that he failed to

demonstrate a “gross miscarriage of justice at the prior proceeding” and he

therefore may not, at this point, collaterally attack his 1996 deportation order.

Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir. 1980) (per curiam); see also

Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1172-73 (9th Cir. 2001); Biwot v.

Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (waiver of right to appeal must be

“considered and intelligent”).

      We reject Ponce-Rodriguez’s constitutional challenge to 8 C.F.R.

§ 1003.44(k)(2). See Avila-Sanchez, 509 F.3d at 1040-41.

      PETITION FOR REVIEW DENIED.




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