Ramon Montiel-Barraza v. Immigration and Naturalization Service

Ramon Montiel-Barraza petitions for review of an order of the Board of Immigration Appeals finding him removable as an aggravated felon under 8 U.S.C. § 1227 (a)(2)(A)(iii). Montiel-Barraza was convicted on December 4, 1998, of driving under the influence of alcohol (DUI) with multiple prior convictions, in violation of California Vehicle Code sections 23152(a) and 23175. Because petitioner had four prior DUI convictions under section 23152 within the past seven years, section 23175 elevated his conviction to a felony and enhanced his sentence. He was sentenced to sixteen months’ imprisonment.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996) limits our review of removal orders. 8 U.S.C. § 1252 (a)(2)(C) (“no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)”). Nonetheless, we have jurisdiction to determine our jurisdiction, Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000), and may review the threshold issue of whether Montiel’s conviction constituted an aggravated felony.…