Ayon-Astorga

MEMORANDUM **

Appellant Rosalio Ayon-Astorga pleaded guilty to being an alien found unlawful *474 ly in the country following deportation, 8 U.S.C. § 1326 . He preserved two issues for appeal.

I

Ayon-Astorga challenges the legality of the deportation upon which his conviction was based, as permitted by United States v. Mendoza-Lopez, 481 U.S. 828 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). The illegality he asserts is the failure of the Immigration Judge to advise him that he could apply for hardship relief from deportation pursuant to § 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (h).

Ayon-Astorga, however, was previously admitted as a permanent resident and thereafter was convicted of an aggravated felony. He is accordingly statutorily ineligible for § 212(h) relief by reason of an amendment to § 212(h) enacted prior to his conviction. See 8 U.S.C. § 1182 (h)(2). Ayon-Astorga argues that, despite the statutory disqualification, the Immigration Judge should have advised him that a constitutional challenge to the amendment was possible, because a district court had held that § 1182(h)(2) violated equal protection by treating permanent residents more harshly…