IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60748

Summary Calendar

IVAN RIVERA ALEMAN, also known as Ivan Alejandro River Aleman,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A089 941 138

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Ivan Rivera Aleman, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (BIA) dismissing his appeal of the

immigration judge’s (IJ) order that, inter alia, he was not eligible for cancellation

of removal. The IJ based that ruling on Aleman’s conviction for a crime

involving moral turpitude for which a sentence of more than one year in prison

could be imposed. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 9, 2013

Lyle W. Cayce

Clerk

* 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.

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Aleman contends his prior conviction does not bar his eligibility for

cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C), which provides that a

nonpermanent resident may be eligible for cancellation of removal if he has not

been convicted of an offense under three statutes, including 8 U.S.C. § 1227(a)(2)

(deportable criminal offenses). Aleman claims: § 1229b(b)(1)(C) should be

interpreted to include all of the immigration-related elements in the three

statutes; and the BIA improperly concluded only language regarding the

criminal offense determines whether an offense is “under” one of the three

statutes. Aleman additionally asserts the BIA’s construction of § 1229b(b)(1)(C)

has an impermissible retroactive effect. To the extent that Aleman raised other

claims in the immigration proceedings, he has abandoned them by not

presenting them in his petition for review. See Soadjede v. Ashcroft, 324 F.3d

830, 833 (5th Cir. 2003).

The Government claims we lack jurisdiction to review Aleman’s petition

because he failed to exhaust administrative remedies with respect to his

appellate issues. TheGovernment alternatively maintains Aleman’s claims lack

merit and are effectively foreclosed by this court’s precedent. We pretermit any

jurisdictional concerns because Aleman’s claims lack merit. See Zamora-Vallejo

v. Holder, 378 F. App’x 386, 389 (5th Cir. 2010); Lakhavani v. Mukasey, 255 F.

App’x 819, 822 (5th Cir. 2007); Madriz-Alvarado v. Ashcroft, 383 F.3d 321,

327-28 (5th Cir. 2004).

The BIA’s legal conclusions are reviewed de novo “unless a conclusion

embodies the [BIA]’s interpretation of an ambiguous provision of a statute that

it administers”. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). Such a

conclusion is entitled to deference. Chevron U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 844 (1984). 

The first, well-known step in interpreting a statute is to determine

whether Congress has directly spoken to the question at issue. Id. at 842. If so, 

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we, as well as the agency, must give effect to the unambiguously expressed

intent of Congress. Id. at 842-43. As is also well established, if an unambiguous

answer is not found, we must determine whether the agency’s interpretation is

based on a permissible construction of the statute. Id. at 843. And, when

deciding the permissibility of an agency’s interpretation, we must consider “only

whether the decision is arbitrary, capricious, or manifestly contrary to the

statute”. Khalid v. Holder, 655 F.3d 363, 366-67 (5th Cir. 2011) (internal

quotation marks and citation omitted).

Previously, our court has rejected contentions virtually identical to those

made by Aleman. Nino v. Holder held the plain language of § 1229b(b)(1)(C)

unambiguously refers to the elements of the offenses set forth in the three

statutes and does not refer to any aspects of immigration law. 690 F.3d 691,

697-98 (5th Cir. 2012) (concluding § 1227(a)(2) provides “a list of the kinds of

offenses which bar cancellation of removal” and “it does not matter when the

offense occurred in relation to the alien’s admission”). Furthermore, because

Nino held there was an unequivocal answer to the meaning of § 1229b(b)(1)(C),

our court declined in Nino to engage in additional Chevron analysis and consider

the BIA’s construction of the statute. Id. at 698. 

In the light of our holding in Nino, Aleman’s contentions that 

§1229b(b)(1)(C) should be read to include aspects of immigration law and that

the BIA wrongly interpreted the statute by reaching a contrary determination

are effectively foreclosed. Similarly, his claim he should not be subject to the

BIA’s construction of § 1229b(b)(1)(C) because such a construction conflicts with

the BIA’s prior decisions and is impermissibly retroactive is unavailing, given

the holding in Nino that the plain language of § 1229b(b)(1)(C) is unambiguous. 

See id. To the extent Aleman contends Nino should be ignored or overturned,

it goes without saying that a panel of this court may not overrule the holding in

an earlier opinion of this court, absent an intervening change in law or an en

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banc or Supreme Court decision. See Burge v. Parish of St. Tammany, 187 F.3d

452, 466 (5th Cir. 1999). 

DENIED. 

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