Ky Luong v. Eric H. Holder Jr., No. 08-74503 (9th Cir. 2010)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 28 2010 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 08-74503 KY LAY LUONG, Petitioner, Agency No. A022-102-119 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 1, 2010 Pasadena, California Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges. Ky Lay Luong petitions for review of his removal order and the Board of Immigration Appeals (BIA) denial of his applications for relief from removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review. The parties are familiar with the facts of the case so we do not repeat them here. Luong cannot be removed on the basis of his 1986 conviction, the sole basis * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. alleged in his amended Notice to Appear. Ledezma-Galicia v. Holder, 599 F.3d 1055, 1075 (9th Cir. 2010) (holding that 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions . . . that occurred prior to November 18, 1988. ). In addition, § 1252(d) does not foreclose his claim. Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (per curiam) ( Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims. ). Because Luong is not removable as charged, we do not consider Luong s claim regarding his applications for relief. We leave to the government whether to institute new removal proceedings based on Luong s other convictions. PETITION FOR REVIEW GRANTED. 2

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