NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMINA PHILLIP-VALLADARES, 

Petitioner,

 v.

LORETTA E. LYNCH, Attorney General, 

Respondent.

No. 11-71395

Agency No. A095-720-371

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 21, 2016**

Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and GORDON,*** District 

Judge.

Petitioner Romina Phillip-Valladares is a native and citizen of Argentina. 

She was admitted into the United States on a visitor’s visa in August 1984. In 

2003, Phillip-Valladares pleaded nolo contendre to grand theft in violation of 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Andrew P. Gordon, United States District Judge for 

the District of Nevada, sitting by designation.

FILED

SEP 23 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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California Penal Code § 487(a). The Department of Homeland Security issued 

Notices to Appear charging Phillip-Valladares with inadmissibility under 8 U.S.C. 

§ 1182(a)(6)(A)(i) and removability under 8 U.S.C. § 1227(a)(1)(B).

Phillip-Valladares sought cancellation of removal pursuant to 8 U.S.C. 

§ 1229b(b)(1). An immigration judge (“IJ”) denied Phillip-Valladares’s 

application, finding that she was convicted of a crime involving moral turpitude for 

which a sentence of one year or longer may be imposed. The IJ therefore 

concluded that 8 U.S.C. § 1227(a)(2) applied, making her ineligible for 

cancellation of removal regardless of whether she was eligible for the petty-offense 

exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The Board of Immigration 

Appeals (“BIA”) affirmed the IJ’s decision. Phillip-Valladares now appeals the 

BIA’s decision. Reviewing de novo, we affirm.

Phillip-Valladares argues that the BIA improperly relied on its panel 

decisions in Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009), and Cortez 

Canales, 25 I. & N. Dec. 301 (BIA 2010) because those decisions impermissibly 

overturned BIA precedent. However, Phillip-Valladares never raised before the 

BIA the issue of whether it had the authority to overrule its prior precedent. 

Assuming that Phillip-Valladares is claiming that the BIA violated its own 

regulation (8 C.F.R. §§ 1003.1(a)(5) & (h)) when it allegedly overruled prior BIA 

precedent, we lack jurisdiction to hear the issue because it is unexhausted. See

Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004); 8 U.S.C. § 1252(d)(1). If 

Phillip-Valladares is claiming a due-process violation, then we have jurisdiction to 

hear the constitutional challenge. Barron, 358 F.3d at 678. Nevertheless, her 

argument is without merit.

Pursuant to 8 U.S.C. § 1229b(b)(1)(C), an alien is eligible for cancellation of 

removal only if she “has not been convicted of an offense under section 

1182(a)(2), 1227(a)(2), or 1227(a)(3) of [Title 8, United States Code].” Both 
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Almanza and Cortez addressed an issue not raised in the BIA’s precedents: 

whether an alien’s conviction for a crime involving moral turpitude that was 

“described under” both § 1227(a)(2) and § 1182(a)(2), but which was subject to the 

petty-offense exception under § 1182(a)(2)(A)(ii)(II), would nevertheless render 

the alien ineligible for cancellation of removal. The BIA answered this question in 

the affirmative, finding that a conviction for an offense “described under” § 

1227(a)(2) would render an alien ineligible for cancellation of removal regardless 

of whether the alien was eligible for the petty-offense exception to § 1182(a)(2). 

To prove eligibility for cancellation, an alien must show that she has not been 

convicted of an offense under any of the three sections listed in § 1229b(b)(1)(C). 

Because this issue had not been resolved in prior BIA decisions, Almanza and 

Cortez did not overrule BIA precedents.

Nor do the Almanza and Cortez decisions constitute a change to the law that 

would be impermissibly retroactive if applied to Phillip-Valladares. Rather, these 

cases provided “further guidance” on how to analyze whether an alien has been 

convicted of an offense described under §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3) 

for purposes of cancellation of removal under § 1229b(b)(1)(C). Cortez, 25 I. & N. 

Dec. at 309. Phillip-Valladares cites no statute or case law holding that 

clarification of the application of a preexisting law amounts to a change or repeal 

of the law such that retroactive application would be an unconstitutional denial of 

due process.

Finally, Phillip-Valladares’ alleged reliance on the petty-offense exception 

was unreasonable. Both at the time she pleaded guilty to grand theft and at the 

time she applied for cancellation of removal, the law regarding the application of 

the petty-offense exception to cancellations of removal under § 1229b(b)(1)(C) 

was not settled in Phillip-Valladares’s favor. Thus, the BIA properly affirmed the 
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IJ’s determination that Phillip-Valladares was ineligible for cancellation of 

removal.

AFFIRMED.