* Pursuant to Federal Rule of Appellate Procedure 43 (c)(2), Respondent

requests that Alberto R. Gonzales be substituted fo r John Ashcroft as the respondent in this case.

** This order is not binding precedent, except underthe doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

*** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 14, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FELIX GOMEZ-DIAZ,

Petitioner, No. 04-9568

v. (Board of Immigration Appeals) ALBERTO R. GONZALES,

Respondent. * (A92-921-129)

ORDER AND JUDGMENT **

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. ***

Appellant Felix Gomez-Diaz (Gomez) appeals a Board of Immigration Appeals (BIA) order dismissing his appeal on the gr ound that he waived his right to appeal. Gomez argues on appeal to this court th at the waiver was not knowing-2-

and voluntary. Gomez further argues that his due p rocess rights were violated by deporting him based on a guilty plea that should no t have disqualified him from receiving the benefit of § 212(c) of the Immigratio n and Nationality Act of 1952. Because we find Gomez was ineligible for § 212(c) r elief, we AFFIRM. BACKGROUND Gomez appeared pro se in a deportation hearing on D ecember 30, 2002. At that hearing he admitted he had previously pled gui lty to Possession of a Controlled Substance on January 3, 1997, and to Ill egal Discharge of a Firearm on August 29, 2002, both of which rendered him deportable. The immigration judge (IJ) concluded that Gomez was ineligible for any fo rm of relief but offered to continue the hearing to allow Gomez to consult with an attorney. At the same time, however, the IJ discouraged Gomez from that c ourse by stating, “I think that [an] attorney’s going to tell you the same thing I’ m telling you—that you’re not eligible for anything.” [R. at 41.] Gomez declined the opportunity to continue the hear ing to consult with counsel, and the IJ ordered that he be removed “as soon as possible.” The IJ then asked Gomez if he wanted to appeal the decision. G omez said, “No.” [R. at 41–42.]-3- JURISDICTION Section 1252 of the Immigration Act gives us jurisd iction to consider appeals from final removal orders. This jurisdicti on is limited, however, by an express statutory provision that an appellant must have first exhausted administrative remedies. 8 U.S.C. § 1252(d)(1). N evertheless, we have not required exhaustion where an alien challenges a rem oval order on constitutional grounds because the BIA does not have authority to resolve such claims. Hoang v. Comfort , 282 F.3d 1247, 1254 (10th Cir. 2002), abrogated on other grounds by Demore v. Hyung Joon Kim , 538 U.S. 510 (2003). Our jurisdiction is further limited by § 1252 (a)(2 )(C), which eliminates appellate jurisdiction to review removal orders bas ed on the commission of certain crimes. The government moved to dismiss bas ed on this provision. Congress, however, subsequently reinstated limited judicial review of such orders in the REAL ID Act: Nothing in subparagraph (B) or (C), or in any otherprovision of this chapter (other than this section) which limits or e liminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for revi ew filed with an appropriate court of appeals in accordance with thi s section. 8 U.S.C. § 1252(a)(2)(D). The government concedes, and we agree, that this provision gives us jurisdiction to review Gomez’s c onstitutional claims and any-4-

legal claims that he raised with the BIA. See Schroeck v. Gonzales , — F.3d —, 2005 WL 3047966 (10th Cir. 2005) (discussing REAL I D Act). APPEAL WAIVER The first issue is whether Gomez waived his right t o appeal the removal order. To be valid, a waiver must be knowing and v oluntary. See United States v. Mendoza-Lopez , 481 U.S. 828, 840 (1987). The BIA has recognizedthat “in cases involving unrepresented aliens, more detailed explanations are often needed.” In re Rodriguez-Diaz , 22 I&N Dec. 1320, 1323 (BIA 2000). Whether a colloquy satisfies these requirements is a determin ation that is made “regardless of whether the respondent actually contemplated tak ing an appeal on the day of the hearing.” Id. In this appeal, however, we need not definitively resolve the waiver argument because it is clear that Gomez cann ot show a due process violation. DUE PROCESS VIOLATION Removal was proper because Gomez was ineligible for§ 212(c) relief. Gomez argues that the IJ violated his due process r ights by deporting him based on a 1997 guilty plea that, he claims, did not disq ualify him for discretionary relief under § 212(c) of the Immigration and Nation ality Act of 1952. Section 212(c), as interpreted by the BIA, authoriz ed the Attorney General to waive deportation in many immigration cases. 8 U .S.C. § 1182(c) (1994). In-5-

1996 Congress eliminated this provision in the Anti terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8 U.S.C.), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546 (1996) (codified as amended in scatt ered sections of 8 U.S.C.). Until that time, § 212(c) allowed more than 10,000 aliens to avoid deportation. INS v. St. Cyr , 533 U.S. 289, 296 (2001). With the elimination of § 212(c) relief, the Suprem e Court in INS v. St. Cyr , considered the fate of aliens who, post-AEDPA andIIRIRA, were being deported for pre-AEDPA and IIRIRA “convictions [that] were obtained through plea agreements and who, notwithstanding those conv ictions, would have been eligible for § 212(c) relief at the time of their p lea under the law then in effect.” Id. at 326. Recognizing that “preserving the possibil ity of such relief would have been one of the principal benefits sought by defend ants deciding whether to accept a plea offer or instead to proceed to trial, ” the Court held that “§ 212(c) relief remains available” for such aliens. Id. at 323, 326. Gomez’s argument that he was eligible for § 212(c) relief from deportation based on his January 3, 1997 conviction rests on hi s claim that St. Cyrapplies to pleas entered before April 1, 1997, the effective d ate of IIRIRA. The government-6-

responds that St. Cyrapplies only to guilty pleas entered before April 24, 1996, the effective date of AEDPA. We need not resolve this dispute here because Gomez ’s 2002 conviction for illegal discharge of a firearm made him clearly ine ligible for § 212(c) relief. For one thing, he entered this plea long after Congress enacted both AEDPA and IIRIRA. And, in any event, courts looking at the applicability of § 212(c) have consistently held that aliens such as Gomez convict ed of firearm offenses are not eligible for § 212(c) relief. See Farquharson v. United States Att’y Gen. , 246 F.3d 1317, 1324 (11th Cir. 2001) (citing cases). CONCLUSION Accordingly, the Motion to Dismiss for Lack of Juri sdiction is DENIED, but we find that Gomez’s removal order did not viol ate due process and AFFIRM. Entered for the Court Timothy M. Tymkovich Circuit Judge