Walker-Patrick

MEMORANDUM *

Congress did not provide for the situation, as here, where an appeal of the district court’s denial of a habeas petition was pending at the time the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 302 (2005), became effective in May 2005. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir.2005). We have held that such an appeal of the denial of a habeas petition “should be construed as if it were a timely filed petition for review with this court.” Id. We therefore review the decision of the Board of Immigration Appeals (Board), not the district court’s order adopting the Magistrate Judge’s Report and Recommendation. See id.

We lack jurisdiction over Walker-Patrick’s “aggravated felony” claims because he did not exhaust administrative remedies. See 8 U.S.C. § 1252 (d)(1). Before the Board, Walker-Patrick had the right to challenge both the fact of his 1997 conviction and to make non-constitutional legal arguments concerning whether he had been convicted of an aggravated felony. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1150-51 (9th Cir.2003) (as amended). He failed to do so. We need not address the further issue of whether Walker-Patrick could have pressed a…