An immigrаtion judge ordered Clemente Alvarado-Fonseca, a Mexican citizen, removed to Mexico on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, a deportable offense. On appeal to the Board of Immigration Appeals (“BIA”), Alvarado-Fonseca argued that he was not removable because the definition of aggravated felony in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) could not be applied retroactively. The BIA dismissed the appeal. Alvarado-Fonseca now argues that a provision in the Anti-Drug Abuse Act of 1988 (“ADAA”) precludes his deportation. Alvarado-Fonseca waived that argument by failing to raisе it before the BIA. In light of that failure to exhaust, we must deny the petition.
I. Background
A. Factual Background
Alvarado-Fonseca, a citizen of Mexico, was admitted to the United States as a lawful permanent resident alien on April 27, 1973, at the age of ten. In 1984, a twenty-one-year-old Alvarado-Fonseca was convicted of armed robbery in Illinois state court, and was sentenced to six-years in prison. Now 47 years old, AlvaradoFonseca has since married a United States citizen, with whom he has two children.
On April 2, 2007, the Department of Homeland Security commenced removal proceedings against Alvarado-Fonseca by filing a Notice to Appear (“NTA”) against him in the Immigration Court. The NTA charged that Alvarado-Fonseca was remоvable from the United States under three provisions of the Immigration and Nationality Act (“INA”): (1) section *387 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a theft or burglary offense as defined in § 101(a)(43)(G) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G)); (2) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a crime of violence as defined in § 101(a)(43)(F) of the INA (see 8 U.S.C. §§ 1227(a) (2)(A) (iii), 1101(a)(43)(F)); and (3) section 237(a)(2)(C) for a conviction that involved the use or possession of a firearm (see 8 U.S.C. § 1227(a)(2)(C)).
B. Statutory Background
The thrust of Alvarado-Fonseea’s argument in this Court turns on the interplay of several amendments to the federal immigration laws. A short discussion of each of the relevant enactments is helpful.
1. The Anti-Drug Abuse Act of 1988
Congress first made conviction for an “aggravated felony” a depоrtable offense in 1988, when it amended the INA through the Anti-Drug Abuse Act of 1988 (“ADAA”). See ADAA § 7344(a). At that time, the statutory definition of “aggravated felony” did not include theft offenses or crimes of violence. Section 7344(b) of the ADAA provided that the amendments applied only “to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.” Therefore, under the ADAA, only aliens convicted of an aggravated felony on or after November 18, 1988 were deportable. In his petition, Alvarado-Fonseca relies on the temporal restriction set forth in ADAA § 7344(b) for his position that he cannot be deported for his 1984 conviction.
2. The Immigration Act of 1990
In 1990, Congress enacted the IMMAct, § 501(a) of which broadened the definition of “aggravated felony” to include any crime of violence for which a term of imprisonment of at least 5 years is imposed. The new definition applied only to crimes committed on or after November 29, 1990. See IMMAct § 501(b).
Section 602(c) of the IMMAct provided: SAVINGS PROVISION. — Notwith-
standing the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically рrovided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.
See 104 Stat. 5081-82 (1990).
3. The Immigration Technical Corrections Act of 1994
On October 25, 1994, Congress again broadened the definition of “aggravated felony” to include theft offenses for which the term of imprisonment imposed is at least five years. See ITCA § 222(a). The ITCA provided that “[t]he amendments made by ... section [222(a) ] shall apply to convictions entered on or after the date of enactment of this Act.” ITCA § 222(b).
4. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Congress revisited the definition of “aggravated felony” again in 1996 with the *388 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See IIRIRA § 321(a). Section 321(b) of IIRIRA amended the INA to read: “Notwithstanding any other provision of law (including any effective date), [the amended definition of aggravаted felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” Section 321(c) of IIRIRA states that “[t]he amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred.”
C. Procedural Background
In the proceеdings before the Immigration Judge (“IJ”), Alvarado-Fonseca contended that he had previously appeared before an IJ and had been granted a waiver of deportation; however he could produce no evidence of such a waiver. Alvarado-Fonseca also applied for cancellation of removal. On April 14, 2009, thе IJ concluded in a written opinion that Alvarado-Fonseca was removable on all three charges based on his conviction for armed robbery. Specifically, the IJ found that armed robbery “certainly is an offense relating to a theft offense, identified in § 101(a)(43)(G) of the INA.” Furthermore, the IJ determined that armed robbery constitutes a crime of violenсe as defined in INA § 101(a)(43)(F) because it involves a clear risk of harm to an individual. Finally, the IJ found that AlvaradoFonseca was removable pursuant to § 237(a)(2)(C) because he had been convicted of a crime that involved the use or possession of a firearm. The IJ dismissed Alvarado-Fonseca’s application for cancellation of remоval, concluding that he was ineligible for cancellation because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (barring a permanent resident alien from eligibility for cancellation of removal if he has been convicted of an aggravated felony).
On appeal of the IJ’s decision to the BIA, Alvarado-Fonsecа argued that he was not removable pursuant to § 237(a)(2)(C) because he had not been convicted of a firearm offense. 1 AlvaradoFonseca also maintained that, because he, was not deportable at the time he was convicted, he cannot be removed today. Specifically, Alvarado-Fonseca argued that the IIRIRA’s еxpanded the definition of “aggravated felony” — enacted in 1996— could not be applied to his 1984 conviction because (1) there is a presumption against retroactive application, and (2) retroactive application would violate his due process rights.
On March 17, 2010, the BIA dismissed Alvarado-Fonseca’s appeal, rejecting Alvаrado-Fonseca’s argument that the IIRI
*389
RA’s aggravated felony provision should not apply retroactively. For that conclusion the BIA relied in part on our decision in
Flores-Leon v. INS,
II. Discussion
Generally, we lack jurisdiction to review an order removing an alien who has been convicted of committing an “aggravated felony.”
See
8 U.S.C. § 1252(a)(2)(C);
Gaiskov v. Holder,
A. Exhaustion
In the instant petition, AlvaradoFonseca effectively concedes that he is removable under our decision in
Flores-Leon v. INS,
In
Flores-Leon,
we squarely rejected the argument Alvarado-Fonseca advanced before the BIA — namely, that the IIRIRA’s definition of aggravated felony cannot be applied retroactively. The рetitioner in
Flores-Leon
had been convicted in 1994 of a crime that was not classified as an aggravated felony until 1996. We concluded that the amended definition could be applied to the earlier conviction, holding that “the amended definition of ‘aggravated felony’ [set forth in IIRIRA § 321(a) ] should be applied to any and all criminal violations committed by an alien after his or her entry into the United States, regardless of whether they were committed before or after the amended definition went into effect.”
Ledezmar-Galicia
involved a petitioner who, like Alvarado-Fonseca and unlike
Flores-Leon,
was convicted before Congress enacted the ADAA in 1988, thereby making conviction for an “aggravated felony” a deportable offense for the first time.
With respect to IIRIRA § 321 (the only provision at issue in
Flores-Leon),
the Ninth Circuit stated that “it is settled law that the ...
definitional
statute, IIRIRA § 321, which defines certain crimes as aggravated felonies, applies
regardless
of the date of the crime.”
Id.
at 1074 (quoting
Lopez-Castellanos v. Gonzales,
The
Ledezmar-Galicia
court went on to conclude that nothing in the IIRIRA affected the temporal limitation set forth in ADAA § 7344(b).
Thus, the decision on which AlvaradoFonseca now relies turns on ADAA § 7344(b), and its relationship to IIRIRA § 321(b) and IMMAct § 602(c). By relying on Ledezma-Galicia, Alvarado-Fonseca is asking us to considеr whether ADAA § 7344(b) remains in effect. 2 But Alvarado-Fonseca did not raise the potential relevance of either ADAA § 7344(b) or IMMAet § 602(c) before the IJ or the BIA. Rather, in his administrative proceedings, Alvarado-Fonseca focused on the fact that he was convicted before the IIRIRA was enacted in 1996; now he bases his argument on the fact that he was convicted before the 1988 passage of the ADAA.
*391
Consequently, as the government contends, Alvarado-Fonseca failed to exhaust the argument he now advances.
3
“An alien ordered removed from this country is required to exhaust the administrative remedies available to him before seeking judicial review of the removal order.”
Ghaffar v. Mukasey,
By requiring that the BIA be given the first opportunity to consider questions of law under the INA, the exhaustion requirement acknowledges and respects the BIA’s role as the primary interpreter of immigration law, as well as its expertise in interpreting the INA.
Zeqiri v. Mukasey,
B. Ex Post Facto Clause
Alvarado-Fonseca also contends that deporting him for the commission of an aggravated felony would violate the
ex post facto
clause, which prohibits the retroactive application of criminal laws that materially disadvantage the defendant.
See
U.S. Const, art. I, § 9, cl. 3;
Flores-Leon,
In Padilla, the Court held that counsel for an alien charged with a crime has a constitutional obligation to tell the client that a guilty plea carries a risk of deportation. Id. at 1486. In reaching that conclusion, the Court noted that “deportation is a particularly severe ‘penalty,’ ” and that removal proceedings, while “civil in *392 nature,” are “intimately related to the criminal process.” Id. at 1481. However, the Court also reaffirmed that deportation “is not, in a strict sense, a criminal sanction.” Id. In light of that statement, we cannot agree that Padilla provides sufficient guidance to deviate from the long line cases establishing that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.
III. Conclusion
For the foregoing reasons, the petition for review is Denied.
Notes
. Alvarado-Fonseca offered no explanаtion for his position that armed robbery should not be considered a conviction for "using, owning, possessing, or carrying, ... any weapon ... in violation of any law” under INA § 237(a)(2)(C), and we can think of none.
See
8 U.S.C. § 1227(a)(2)(C). However, contrary to the government's request, we cannot deny the petition on the ground that Alvarado-Fonseca is removable pursuant to INS § 237(a)(2)(C). While the BIA nоted that the IJ found Alvarado-Fonseca to be removable under § 237(a)(2)(C), it did not rely on § 237(a)(2)(C) as a basis for its ruling. Nor did the BIA adopt the IJ’s opinion. Therefore, the BIA's decision is "the exclusive focus of our review.”
Moab v. Gonzales,
.
We have not addressed that issue. Both the BIA and a number of our sister circuits have considered it, and have reached varying conclusions based on the interplay of the ADAA, the IMMAct, and the IIRIRA.
See Lewis v. INS,
. Alvarado-Fonseca did not file a reply brief to refute the government's exhaustion argument and argue that he properly preserved this issue.
. As noted above, the BIA has concluded in other cases that IMMAct § 602(c) overrides ADAA § 7344(b). Presumably, the BIA would have dismissed Alvarado-Fonseca's appeal on that ground if he had presented the argument he now raises in his administrative appeal. Thereforе, one might argue that AlvaradoFonseca should be excused from administrative exhaustion on futility grounds. (Alvarado-Fonseca does not attempt to avoid the exhaustion requirement by advancing this argument, or any other for that matter). However, we rejected a similar argument in
United States v. Roque-Espinoza,