Cosio v. Gonzales

MEMORANDUM **

Francisco J. Cosio, 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 pursuant to 8 U.S.C. § 1252. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006). We review de novo, Molinar-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002), and deny the petition for review.

Cosio’s 1988 conviction for possession for sale of a controlled substance constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining illicit trafficking in a controlled substance as an aggravated felony); see also Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th Cir. 2000) (holding that Congress “clearly manifested an intent for the amended definition of aggravated felo*661ny to apply retroactively” to all defined offenses whenever committed).

Cosío was not eligible for a discretionary waiver at the time he pled and, thus, there is no impermissible retroactive effect. Cf. Lopez-Castellanos v. Gonzales, 437 F.3d 848, 853 (9th Cir. 2006) (“[t]o deprive Lopez-Castellanos of eligibility for discretionary relief would produce an impermissibly retroactive effect for aliens, who, like Lopez-Castellanos, were eligible for a discretionary waiver at the time of the plea.”).

The BIA therefore correctly concluded that Cosío was ineligible for both special-rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NA-CARA”) and cancellation of removal under 8 U.S.C. § 1229b(b). See Ortiz v. INS, 179 F.3d 1148, 1154 n. 7 (9th Cir. 1999) (stating that relief under NACARA is available only to those who have not been convicted of an aggravated felony); see also 8 U.S.C. § 1229b(b)(1)(C) (barring cancellation of removal to individuals who have been convicted of offenses under INA § 237(a)(2), which includes aggravated felonies).

PETITION FOR REVIEW DENIED.