Castellanos v. Gonzales

137 F. App'x 88

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2005
• Docket: No. 04-70217
• Status: Published

Opinion

MEMORANDUM

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Jose de Jesus Mendoza Castellanos, a native and citizen of Mexico, petitions pro se for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) order finding him statutorily ineligible for cancellation of removal because of his conviction for a firearms offense. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of statutory construction, Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir.1999), and we deny in part and dismiss in part the petition for review.

The IJ correctly concluded that Mendoza Castellano was ineligible for cancellation of removal because of his conviction under California Penal Code § 246.3 for unlawful discharge of a firearm with gross negligence. See 8 U.S.C. § 1229b(b)(l)(C) (to establish eligibility for cancellation of removal, alien must prove that he has “not been convicted of an offense under section ... 1227(a)(2) ... of this title”); Valerio-Ochoa v. INS, 241 F.3d 1092, 1095-96 (9th Cir.2001) (holding that “the act of ‘willfully discharg[ing] a firearm in a grossly negligent manner’ in violation of CahPenal Code § 246.3 qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”).

We lack jurisdiction to consider Mendoza Castellano’s contentions that (1) the IJ should not have considered his firearm conviction because it was subsequently expunged; and (2) his firearm conviction does not render him ineligible for cancellation of removal because the conviction predates the 1996 amendments to the Immigration and Nationality Act. Mendoza Castellano did not raise these issues in his appeal to the BIA and thus failed to exhaust administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (exhaustion of administrative remedies is mandatory and jurisdictional).

Mendoza Castellano’s remaining contentions lack merit.

The voluntary departure period was stayed, and that stay will expire upon issuance of the mandate. See Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

■j'hjg disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.