Sung Kei Leung v. Mukasey

MEMORANDUM *

Sung Kei Leung petitions for review of the final order of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ) decision finding him removable as an aggravated felon and pretermitting his application for a § 212(c) waiver under the former Immigration and Nationality Act, 8 U.S.C. § 1182 (c). We dismiss the petition in part and deny the petition in part.

I

We lack jurisdiction to consider whether the IJ violated Leung’s due process rights during reopened proceedings because the asserted deficiency is one that the BIA could have corrected on appeal but which Leung failed to raise. The issue is not, therefore, exhausted. 8 U.S.C. § 1252 (d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004).

II

The text of IIRIRA § 321(b) plainly indicates that Congress intended for aliens to be deportable under IIRIRA’s aggravated felony definition regardless of the date of conviction (“[njotwithstanding any other provision of law (including any effective date) ... ”). Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1101 (a)(43); Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir.2000). Thus, Leung…