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Clemente Alvarado-Fonseca v. Erich. Holder

January 6, 2011

CLEMENTE ALVARADO-FONSECA, PETITIONER,
v.
ERICH. HOLDER, JR., RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A034-223-857

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED DECEMBER 3, 2010.

Before FLAUM, ROVNERand EVANS, Circuit Judges.

An immigration judge ordered Clemente Alvarado-Fonseca, a Mexican citizen, removed to Mexico on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, a deportable offense. On appeal to the Board of Immigration Appeals ("BIA"), Alvarado-Fonseca argued that he was not removable because the definition of aggravated felony in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") could not be applied retroactively. The BIA dismissed the appeal.

Alvarado-Fonseca now argues that a provision in the Anti-Drug Abuse Act of 1988 ("ADAA") precludes his deportation. Alvarado-Fonseca waived that argument by failing to raise it before the BIA. In light of that failure to exhaust, we must deny the petition.

I. Background

A. Factual Background

Alvarado-Fonseca, a citizen of Mexico, was admitted to the United States as a lawful permanent resident alien on April 27, 1973, at the age of ten. In 1984, a twenty-one-year-old Alvarado-Fonseca was convicted of armed robbery in Illinois state court, and was sentenced to six-years in prison. Now 47 years old, Alvarado-Fonseca has since married a United States citizen, with whom he has two children.

On April 2, 2007, the Department of Homeland Security commenced removal proceedings against AlvaradoFonseca by filing a Notice to Appear ("NTA") against him in the Immigration Court. The NTA charged that Alvarado-Fonseca was removable from the United States under three provisions of the Immigration and Nationality Act ("INA"): (1) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a theft or burglary offense as defined in § 101(a)(43)(G) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G)); (2) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a crime of violence as defined in § 101(a)(43)(F) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F)); and (3) section 237(a)(2)(C) for a conviction that in- volved the use or possession of a firearm (see 8 U.S.C. § 1227(a)(2)(C)).

B. Statutory Background

The thrust of Alvarado-Fonseca's argument in this Court turns on the interplay of several amendments to the federal immigration laws. A short discussion of each of the relevant enactments is helpful.

1. The Anti-Drug Abuse Act of 1988

Congress first made conviction for an "aggravated felony" a deportable offense in 1988, when it amended the INA through the Anti-Drug Abuse Act of 1988 ("ADAA"). See ADAA ยง 7344(a). At that time, the statu-tory definition of "aggravated felony" did not include theft offenses or crimes of violence. Section 7344(b) of the ADAA provided that the amendments applied only "to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony." Therefore, under the ADAA, only aliens convicted of an aggravated felony on or after November 18, 1988 were deportable. In his ...


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