* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60181

Summary Calendar

EFRAIN SILLERO-GALINDO

Petitioner

v.

MICHAEL B. MUKASEY, US ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A39 791 874

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Efrain Sillero-Galindo (Sillero) seeks review of the order of the Board of

Immigration Appeals (BIA) concluding that he is ineligible for a § 212(c)

discretionary waiver of removal. The BIA concluded that, because Sillero had

a prior aggravated felony conviction, Sillero was ineligible for relief pursuant to

8 C.F.R. § 1212.3(h)(2), as well as 8 C.F.R. § 1212.3(f)(5). Because Sillero has

challenged the determination that he was convicted of an aggravated felony, a

question pertinent to both issues, and because he generally argues entitlement

to § 212(c) relief, we will address the merits of both bases of the BIA’s decision.

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2007

Charles R. Fulbruge III

Clerk
No. 06-60181

2

With respect to § 1212.3(h)(2),the only argumentthat can be construed as

pertinent to this provision is that Sillero was not convicted of an aggravated

felony. Each of the reasons proffered lacks merit. First, Sillero’s contention that

because the sentence imposed was suspended, there was no conviction, was not

raised before the BIA. Thus, we do not consider it. See Roy v. Ashcroft, 389 F.3d

132, 136 (5th Cir. 2004). In any event, Sillero is incorrect because a sentence or

term of imprisonment includes any sentence of confinement regardless of

suspension or all or part of the sentence. See 8 U.S.C. § 1101(a)(48)(B).

Sillero also failed to exhaust his argument that sexual abuse of a minor

was not a deportable offense at the time of his plea on June 28, 1996. See Roy,

389 F.3d at 136. In any event, the argument lacks merit because the amended

definition of aggravated felony, which includes sexual abuse of a minor, applies

retroactively. See Garrido-Morato v. Gonzalez, 485F.3d 319, 324 (5th Cir. 2007).

Finally, for the first time in his reply brief, Sillero asserts that for

purposes of § 1212.3(h)(2), it is the date of the plea, not the date of the

conviction, that controls. Sillero did not make this argument in his opening

brief, and this court need not consider it. See United States v. Hoster, 988 F.2d

1374, 1383 (5th Cir. 1993) (appeals court need not consider arguments raised for

the first time in a reply brief). Moreover, the record shows that the plea was

entered on June 28, 1996, within the relevant period. Sillero’s argument thus

lacks merit. Sillero has shown no error in the BIA’s conclusion that §

1212.3(h)(2) precludes relief. Thus, we need not reach the BIA’s alternative

holding that § 1212.3(f)(5) also precludes relief.

Sillero’s argument that the BIA lacked authority to enter an order of

removal in the first instance also lacks merit. See Avilez-Granados, 481 F.3d at

872 (“the BIA has authority to issue an order of removal in the first instance

once the IJ has determined that an alien is removable”). Finally, we need not

remand this case to the BIA to consider Sillero’s request for adjustment of

status. Sillero already has presented this request to the BIA, and the BIA
No. 06-60181

3

already has rejected it because, as discussed above, § 1212.3(h)(2) precludes him

from obtaining the necessary waiver. See Avilez-Granados, 481 F.3d at 872-73

(remanding because BIA had not previously considered adjustment of status).

For the foregoing reasons, the petition for review is DENIED.