JUAN RETANA, AKA Juan Manuel Herrera v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 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 Alvin K. Hellerstein, Senior District Judge for the U.S.***
District Court for the Southern District of New York, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN RETANA, AKA Juan Manuel
Herrera,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71052
Agency No. A075-758-391
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 8, 2013**
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and HELLERSTEIN,
Senior District Judge.***
FILED
MAR 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Petitioner Juan Retana (Retana) challenges his order of removal and the
Bureau of Immigration Appeal’s denial of withholding relief due to his conviction
for assault with a deadly weapon (ADW), an aggravated felony, in violation of
California Penal Code § 245(a)(1).
1. Conviction of an aggravated felony renders an alien removable and
statutorily ineligible for asylum under 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B). The
aggravated felony conviction further bars eligibility for withholding of removal if
the crime is deemed “particularly serious.” Lopez-Cardona v. Holder, 662 F.3d
1110, 1112 (9th Cir. 2011). Retana concedes that his conviction constitutes an
aggravated felony, but challenges the particularly serious crime finding.
2. We have been stripped of jurisdiction to hear petitions from final
orders of removal when such removal is premised on commission of certain
crimes, including aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C)
(“Notwithstanding any other provision of law . . . and except as provided by
subparagraph (D), no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed [certain
crimes, including aggravated felonies].”). This jurisdictional bar is lifted with

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regard to constitutional or legal challenges to removal or if denial of relief is “on
the merits . . . rather than in reliance on the conviction.” Pechenkov v. Holder, 705
F.3d 444, *3 (9th Cir. 2012) (emphasis and citation omitted).
3. Retana impermissibly seeks a re-weighing of the IJ’s factual
evaluation of his aggravated felony conviction. He notes, for example, that “the
nature of the crime and the underlying circumstances” indicate that his ADW was
not particularly serious. Retana never alleges that the IJ relied on incorrect legal
standards or violated his constitutional rights. The provisions of 8 U.S.C. §
1252(a)(2)(C) deprive us of jurisdiction to review Retanta’s challenge. See
Pechenkov, 705 F.3d at *4 (holding that § 1252(a)(2)(C) barred review of the IJ’s
finding that petitioner’s aggravated felony conviction was a particularly serious
crime where petitioner sought only “a re-weighing of the factors involved in [the
IJ’s] discretionary determination”).
PETITION DISMISSED.

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