Opinion
No. 05-74947.
Argued and Submitted March 9, 2007 Portland, Oregon.
September 13, 2007.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A72-146-547.
Before: GOULD, PAEZ, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Fayez Ahmed Al-Bassrei (Al-Bassrei), a native and citizen of Saudi Arabia, challenges: (1) the Immigration Judge's (IJ's) classification of his state misdemeanor conviction for contributing to the sexual delinquency of a minor as an "aggravated felony"; and, (2) the retroactive application of the amended "aggravated felony" definition, which precludes him from voluntary departure or a bond.
In March of 2005, Al-Bassrei filed a habeas corpus petition in federal district court. Pursuant to § 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, the district court ordered the petition transferred to this Court on August 9, 2005.
Al-Bassrei's failure to properly exhaust his administrative remedies is excused. It would have been futile for Al-Bassrei to argue to the BIA that his misdemeanor conviction was not an aggravated felony. See Sun v. Ashcroft, 370 F.3d 932, 943 (9th Cir. 2004); see also In re Small, 23 I. N. Dec. 448, 449 (BIA 2002) (en banc) (holding that a misdemeanor conviction may qualify as an aggravated felony). Moreover, with respect to Al-Bassrei's argument that retroactive application of the aggravated felony definition was impermissible, we have held that "[r]etroactivity 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." Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (citation omitted).
Al-Bassrei's claims nonetheless fail on the merits, as we have held that a state misdemeanor conviction may qualify as an "aggravated felony" in the immigration context. See Afridi v. Gonzales, 442 F.3d 1212, 1217 n. 2 (9th Cir. 2006). In addition, "Congress intended the 1996 amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed . . ." Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 n. 7 (9th Cir. 2006) (citation omitted).
PETITION DENIED.