### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 B oard o f Immigration Appeals’ (BIA) dismissing his appeal of the immigration j udge’s (IJ) o rder that, inter alia , he was not eligib le for cancellation of removal. The IJ based that ruling on Ale man’s c onviction for a crime involving moral turpitude for which a sentence o f more than one year in prison could be imposed. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Aleman contends h is prior conviction does n ot bar his eli gib i l ity for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C), which provides that a nonpermanent resident m ay b e eligible for cancellation of removal if h e has not been convicted of an offense under three statutes, including 8 U.S.C. § 1227(a)(2) (deportable c r i m i n al o ffenses). Aleman claims: § 1229b(b)(1)(C) should be interpreted to include all o f t h e immigration-related elements in the three statutes; an d the BIA improperly concluded only language r egarding the

c r i m i n a l offense determines whether an offense is “under” one of the thre e statutes. Aleman additionally asserts the BIA’s construction of § 1229b(b)(1)(C) has an impermissible retroactive effect. To the extent that Aleman r a ised other claims in the i m m i g ration proceedings, h e has abandoned them by not presenting them in his petition for review. See So a djede v. Ashcroft , 324 F.3d 830, 833 (5th Cir. 2003). The Government claims we lack jurisdiction to review Aleman’s petition because he failed t o exhaust administrative r emedies w i t h respect to his appellate i s s u e s . Th e G overnment alternatively maintains Aleman’s claims lack merit a nd are effectively foreclosed by this court’s precedent. We pretermit any jurisdictional c oncerns because Aleman’s c laims lack merit. See Zamora-Vallejo

v. Holder , 378 F. App’x 386, 389 (5th Cir. 2010); L akhavani v. Mukasey , 255 F. App’x 819, 822 (5th Cir. 2007); M a d r i z -Alvarado v. Ashcroft , 383 F.3d 321, 327-28 (5th Cir. 2004). The BIA’s legal c onclusions are reviewed de novo “unless a c o nclusion embodies the [BIA]’s interpretation of an ambiguous provision o f a statute that it a d ministers”. Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006). Such a conclusion is entitled to d eference. 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 a t i s sue. Id

. at 8 42. If so,

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we, as well as the a gency, must give effect to the u n a m b i guously expressed intent o f Congress. Id. at 842-43. As is a lso well established, if an unambiguous

answer is not found, we must determine whether the agency’s interpretation is based o n a permissible construction of the statute. Id. at 843. And, when deciding the permissibility of a n agency’s interpretation, we must consider “only whe t her the d ecision is a rbitrary, c apricious, or m anifestly c o ntrary to the

s t a t u t e ”

. Khalid v. Holder , 655 F.3d 363, 366-67 (5th Cir. 2011) (internal quotation marks and citation omitted). Previously, our court h as rejected contentions virtually identical to those made by Aleman. N

ino 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 § 1 227(a)(2) provides “ a list of the kinds of offenses which bar cancellation of r e moval” and “it does n ot matter when the offense occurred in relation t o the alien’s admission” )

. F u r thermore, because Nino held there was an unequivocal answer to the meaning of § 1 229b(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 i n N i n o , Aleman’s contentions that § 1 2 2 9 b(b)(1)(C) should be read to include aspects of immigration law and th a t the BIA wrongly interpreted the statute by reaching a contrary determination

are effectively foreclosed. Similarly, his claim he s h o u l d not be subject to the BIA’s construction of § 1229b(b)(1)(C) b ecause such a construction c onflicts with the BIA’s prio r d ecisions a nd is impermissibly retroactive is unavailing, given the holding i n Nino that the plain language of § 1229b(b)(1)(C) is unambiguous. See id. To the extent Aleman contends Nino s hould b e ignored or overturned, it goes w ithout saying that a panel o f this court m ay not overrule the holding in

an ea r lier opinion of this court, absent an intervening c hange 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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