Hector Esquivel, a Mexican citizen, was ordered removed after an Immigration Judge found him inadmissible as a result of having committed crimes in this country involving moral turpitude. In ordering Esquivel’s removal, the IJ determined that Esquivel wаs ineligible for a waiver under former § 212(c) of the Immigration and Naturalization Act because he had previously served more than five years’ imprisonment for an aggravated felony: attempted murder. Esquivel аppealed to the BIA, which dismissed his appeal and also denied his motion to remand or administratively close proceedings. Esquivel now challenges the basis for the I J’s finding that he was ineligible for a § 212(c) waiver. We deny his petition for review.
Esquivel came to the United States in 1966 at the age of six and has resided here since. He was convicted before a jury of attempted murder 1 in Illinois in 1981 and served seven years of a fifteen-year prison sentence. After his release in 1988, he was placed in depoi’tation proceedings. Esquivel applied for a waiver under the now-repealed § 212(c) of the INA, which permitted permanent resident aliens to request relief from deportation under certain circumstances. After that, an IJ granted his application for the waiver of deportation in 1989, and the BIA agreed and affirmed in 1991. Esquivel was able to retain his status as lawful permanent resident.
Esquivel later on two separate occasions pleaded guilty to two separate counts of misdemeanor retаil theft, in February 1991 and February 1994. See 720 ILCS 5/16A-3. He continued to reside in the United States, but in 2004 he traveled outside the country, and upon return in June 2004, he was apprehended by the Immigration Service and placed in removal proceedings for the theft offenses referred to above. In September 2004 he was charged with being inadmissible as a returning resident because he had committed two crimes involving moral turpitude, which referred to the theft offenses, not the attempted murder conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Esquivel next appeared before an IJ, who found that as a result of his two theft offenses he no longer qualified for a waiver of removal аnd that because he had multiple theft offenses, he was unable to qualify for the petty theft exception. As a result of this ruling Esquivel applied for a second waiver of removal under § 212(c), but the IJ denied the wаiver and ordered him removed finding that he had also served five years or more of a prison sentence for an aggravated felony, namely, the attempted murder. In reaching that conclusion, the IJ noted that § 212(c) of the INA was eliminated in 1997 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the IJ also discussed
INS v. St. Cyr,
Esquivel appealed this decision to the BIA and jоined with a motion to remand or to administratively close proceedings. 2 Esquivel contended that the IJ erred in relying on his 1981 attempted murder conviction and resulting imprisonment to find him statutorily ineligible for § 212(c) relief. In denying Esquivel’s requests for relief, the BIA adopted and affirmed the IJ’s decision, concluding that Esquivel was ineligible for a second waiver under former § 212(c) of the INA. According to the BIA, the IJ did not err in considering Esquivel’s 1981 conviction for attempted murder when ruling on his current eligibility for § 212(c) relief. The BIA approved the Immigration Judge’s decision that Esquiv-el’s attempted murder conviction was an aggravated felony. Finally, the BIA denied Esquivel’s motion to remand or terminate proceedings on the ground that the government had not attested to his prima facie eligibility for naturalization.
On appeal Esquivel does not dispute that he is inadmissible based on thе theft convictions; instead, he argues only that the IJ erred in finding him ineligible for a waiver of his inadmissibility. Thus, the only issue before us is whether the IJ properly concluded that the attempted murder conviction precludеd the § 212(c) relief. If the IJ’s finding on that issue is correct, then the theft convictions provide a sufficient basis for Esquivel’s removal.
See Klementanovsky v. Gonzales,
Esquivel argues that the IJ should not have taken into account his attempted murder conviction. In effect, he contends thаt his initial waiver in 1989 amounted to an expungement of his attempted murder conviction from his criminal record for immigration purposes and that therefore the IJ should not have considered it when ruling on his second waiver application. Although he concedes that the 1990 amendment has retroactive application, he argues that his first waiver should bar that amendment’s application only to his first conviction. He also claims that the IJ erred by applying the term “aggravated felony” to this offense, since that term was codified after he was convicted of the crime.
See
8 U.S.C. § 1101(a)(43)(A), (a)(43)(U). We also wish to make clеar that since these arguments involve questions of law, we have jurisdiction to review them,
Knutsen v. Gonzales,
Esquivel’s primary argument, that if a conviction’s removal effect was waived in 1989 it should remain wаived today, is foreclosed by this circuit’s case law. Prior to 1996, § 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation for aliens under certain circumstancеs. But Congress amended § 212(c) in April 1996 and removed its availability to aggravated felons, and one year later Congress made its complete repeal effective.
See
Antiterrorism and Effective
*922
Death Penalty Act, Pnb.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996); IIR-IRA, Pub.L. No. 104-208, § 304(b), 110 Stat. 3009 (1996). Undеr the Supreme Court’s decision in
St.
Cyr; however, § 212(c) waivers remain available to aliens who pleaded guilty to an aggravated felony prior to the effective date of the repeal and who would have been eligible for relief under the law then in effect.
See generally Valere v. Gonzales,
Moreover, Esquivel cannot escape the consequences of having committed an aggravatеd felony on his admissibility into the country just because that term was defined to include attempted murder after his offense was committed. The statute itself states that the amended definition of aggravated felony “applies regardless of whether the conviction was entered before, on, or after” the date of the amendment’s enactment, September 30, 1996. 8 U.S.C. § 1101(a)(43)(U);
see also Zamora-Mallari v. Mukasey,
We are not aware of nor has the petitioner has cited us any precedent for Es-quivel’s argumеnt that a § 212(c) waiver effectively expunges a conviction from an alien’s criminal record for immigration purposes or bars subsequent consideration of that conviction. The BIA has established that а § 212(c) waiver does not waive the
basis
for excludability itself; it merely waives the
finding
of excludability.
See In re Balderas,
20 I. & N. Dec. 389, 391 (BIA 1991);
see also Peralta-Taveras v. Att’y Gen.,
Finally, Esquivel challenges the BIA’s denial of his motion to remand or administratively close proceedings based on his pending appliсation for naturalization. But as the government correctly notes, the merits of this issue are beyond our jurisdiction. Thus, we retain only limited jurisdiction to review Esquivel’s final order of removal.
See 8
U.S.C. § 1252(a)(2)(C) (providing that no court shаll have jurisdiction to review any final order of removal against an alien who is removable for having committed an aggravated felony). Specifically, we may consider only properly raised сonstitutional claims and questions of law, and Esquivel’s claim that the removal proceedings should have been terminated based on his pending application for naturalization does not qualify as such.
See
8 U.S.C. § 1252(a)(2)(D);
Hernandez-Alvarez v. Gonzales,
The petition for review is Denied.
Notes
. Esquivel’s brief slates that he pleaded guilty to attempted murder, but, as the government points out, the record indicates that he was tried by a jury.
. Esquivel argued that the BIA should close the removal proceedings or hold them in abeyance pending his application for naturalization.