Segoviano Mendoza v. Gonzales

concurring in part, dissenting in part:

I agree with my colleagues that the Board of Immigration Appeals acted properly in affirming the Immigration Judge’s (IJ) finding of removability and denial of application for a discretionary waiver of deportation. I also agree that Petitioner Gustavo Segoviano Mendoza’s challenge to the retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act is squarely foreclosed by our precedent.

My disagreement with my colleagues in the majority stems from our different views of Segoviano Mendoza’s due process claims. The majority disposition resolves these claims on the merits. I conclude that we have no jurisdiction to resolve them at all.

Segoviano Mendoza’s due process claims challenge the IJ’s partial reliance on hearsay evidence and the IJ’s asserted failure to consider all the evidence.

It is well established that hearsay is admissible in immigration proceedings. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir.2003). Because hearsay is admissible in immigration proceedings, the assertion that the IJ violated Segoviano Mendoza’s due process rights by par *656 tially relying on hearsay evidence is not…

MEMORANDUM **

The Board of Immigration Appeals (“BIA”) dismissed Gustavo Segoviano Mendoza’s appeal from the order of an immigration judge (“IJ”), affirming the IJ’s finding of removability and denial of his application for a discretionary waiver of deportation under 8 U.S.C. § 1182 (c) (repealed 1996), 1 and rejecting his constitutional attack on the retroactive application of IIRIRA § 321(a) to a pre-IIRIRA conviction for third degree rape. Segoviano Mendoza argues in his timely petition for review that the BIA violated his right to due process by retroactively applying IIR-IRA’s expanded aggravated felony definition to that conviction, see United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1052 (9th Cir.2004) (amended opinion), and by denying him a “full and fair hearing” before the IJ, see Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990).

We have jurisdiction pursuant to 8 U.S.C. § 1252 (a). Although § 1252(a)(2)(C) forecloses judicial review of “any final order of removal against an alien who is removable by reason of having committed [an aggravated felony],” pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), pursuant to § 1252(a)(D)(2), we…