Pacheco Dominguez v. Gonzales , 227 F. App'x 407 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
No. 06-60814 Clerk
Summary Calendar
SANTIAGO PACHECO DOMINGUEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A93 202 794
--------------------
Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Mexican citizen Santiago Pacheco Dominguez petitions for re-
view of the decision of the Board of Immigration Appeals (“BIA”)
dismissing his appeal of the decision of the Immigration Judge (IJ)
denying his application for cancellation of removal pursuant to
8 U.S.C. § 1229b. Pacheco Dominguez contends that his right to due
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60814
-2-
process was violated when he was placed in removal proceedings af-
ter he had been denied status under the special agricultural worker
(“SAW”) program set out at 8 U.S.C. § 1160. Pacheco Dominguez ar-
gues that information from his application for SAW status was used
in violation of the confidentiality provision of 8 U.S.C.
§ 1160(b)(6)(A)(i). Even if it is assumed that Pacheco Dominguez
exhausted administrative remedies as to that contention, § 1160(b)-
(6)(A)(i) only prohibits use of information gathered during the SAW
legalization process; it does not prohibit immigration authorities
from checking on whether SAW status was granted or denied. See
Arreola-Arrellano v. INS, 223 F.3d 653, 656 (7th Cir. 2000).
Pacheco Dominguez presents several arguments challenging the
determination that his 1989 conviction of alien smuggling rendered
him ineligible for cancellation of removal. Because, however, he
admitted removability on the basis that he was not admitted or
paroled into the United States, he was ineligible for cancellation
of removal regardless of the status of his conviction. See
§ 1229b(a)(1)&(2). Moreover, counsel’s concession that Pacheco Do-
minguez had been convicted of alien smuggling was binding on Pa-
checo Dominguez, see Matter of Velasquez, 19 I.&N. Dec. 377, 382
(BIA 1986); alien smuggling is currently defined as an aggravated
felony, regardless of the sentence imposed, 8 U.S.C. § 1101(a)-
(43)(N); the current definition applies retroactively, id.§ 1101(a)(43); and its retroactivity does not violate the Due Pro-
cess or Ex Post Facto Clause. See Madriz-Alvarado v. Ashcroft, 383
No. 06-60814
-3-
F.3d 321, 334 (5th Cir. 2004) (Due Process Clause); Marcello v.
Ahrens, 212 F.2d 830, 838-39 (5th Cir. 1954), aff’d, 349 U.S. 302(1955) (Ex Post Facto Clause). Finally, 8 U.S.C. § 1182(h), which
Pacheco Dominguez argues entitles him to a waiver, is facially in-
applicable to his case.
PETITION DENIED.