Antonio Nava-Almaguer v. Eric Holder, Jr., No. 10-60947 (5th Cir. 2011)
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Case: 10-60947 Document: 00511617650 Page: 1 Date Filed: 09/29/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-60947 Summary Calendar September 29, 2011 Lyle W. Cayce Clerk ANTONIO DE JESUS NAVA-ALMAGUER, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A041 859 583 Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM:* Petitioner, Antonio De Jesus Nava-Almaguer, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals (BIA) dismissing his appeal of an order of removal. The BIA dismissed the appeal due to Nava s prior conviction of an aggravated felony. Our jurisdiction is limited to colorable constitutional issues and questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D). Nava contends his prior conviction for aggravated assault with a deadly weapon was not an aggravated felony because his entire sentence was * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 10-60947 Document: 00511617650 Page: 2 Date Filed: 09/29/2011 No. 10-60947 suspended. He asserts that 8 U.S.C. § 1101(a)(43)(F) (definition of aggravated felony ) requires one to serve a sentence of one year. Because the question whether Nava has committed an aggravated felony is a legal one, we have jurisdiction to review his petition; it s reviewed de novo. E.g., Dale v. Holder, 610 F.3d 294, 297 (5th Cir. 2010). The term aggravated felony is defined in § 1101(a)(43)(F) as a crime of violence . . . for which the term of imprisonment [is] at least one year . Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. 8 U.S.C. § 1101(a)(48)(B) (emphasis added). Therefore, if the sentencing court imposes a sentence of imprisonment, and then suspends it, the sentence nevertheless counts under § 1101(a)(43)(F) for determining whether the term of imprisonment was at least one year. United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Nava s five-year suspended sentence meets the required term of imprisonment to constitute an aggravated felony. Nava contends his ineligiblity for relief from removal, pursuant to 8 U.S.C. § 1182(h), violates his Fifth Amendment right to equal protection of the laws. Although our court lacks jurisdiction to review the denial of a waiver of inadmissibility under § 1182(h), we do have jurisdiction to review the question of law presented by [a] challenge to the BIA s construction of [§ 1182(h)] . Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008). An alien s equalprotection challenge arises under the Fifth Amendment s Due Process Clause. E.g., Malagon de Fuentes v. Gonzales, 462 F.3d 498, 502-03 & n.7 (5th Cir. 2006). An equal-protection challenge in this context is subject to rational-basis review. Flores-Ledezma v. Gonzales, 415 F.3d 375, 381 (5th Cir. 2005). 2 Case: 10-60947 Document: 00511617650 Page: 3 Date Filed: 09/29/2011 No. 10-60947 In Malagon de Fuentes, 462 F.3d at 506, petitioner maintained, as does Nava, that it was an equal-protection violation for the law to distinguish between lawful permanent residents (LPRs), such as Nava, and aliens who entered the country illegally, for the purpose of § 1182(h) waiver eligibility. Our court noted: Every one of our sister courts to have addressed this question have upheld § 1182(h) s apparent favoring of non-LPRs against equal protection attack . Id. We agreed with those courts that Congress distinction between LPRs and inadmissible aliens for § 1182(h) waiver eligibility has a rational basis. Id. Accordingly, Nava s equal-protection contention fails. Citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Nava contends his conviction for aggravated assault is invalid because he was not properly advised of the immigration consequences of his guilty plea. He asserts he has filed a writ of habeas corpus in the criminal court on this basis, and he could not have brought this claim before the BIA because it was not available until after 31 March 2010, when Padilla was decided. We lack jurisdiction to address this claim, due to Nava s conceded failure to exhaust his remedies before the BIA. 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). DENIED. 3
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