Jimenez-Lopez v. Holder , 355 F. App'x 844 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 14, 2009
No. 08-61126 Charles R. Fulbruge III
Summary Calendar Clerk
VICTOR JAVIER JIMENEZ-LOPEZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
A37 441 904
Before BENAVIDES, PRADO, AND SOUTHWICK, Circuit Judges.
PER CURIAM:*
Petitioner Victor Javier Jimenez-Lopez, a native and citizen of Mexico,
seeks review of the Board of Immigration Appeals’ (BIA) order that affirmed the
decision by the Immigration Judge (IJ). The IJ found Jimenez’s conviction
records as clear and convincing evidence that Jimenez was subject to removal for
conviction of a crime relating to a controlled substance and denied his
application for cancellation of removal under the Immigration and Nationality
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-61126
Act (INA) as ineligible because of his convictions. For the reasons set forth
below, we dismiss his petition in part for lack of jurisdiction and deny in part
because the BIA correctly decided that Jimenez’s convictions constitute an
aggravated felony rendering him ineligible for cancellation of removal.
This Court has statutory jurisdiction to review final orders of removal.
INA § 242, 8 U.S.C. § 1252. However, this jurisdiction is restricted by INA §
242(a)(2)(C), which states that courts do not have jurisdiction “to review any
final order of removal against an alien” who is removed for crimes relating to a
controlled substance under Section 237(a)(2)(B)(i). 8 U.S.C. § 1252(a)(2)(C).
Additionally, we are generally forbidden from reviewing removal orders for cases
in which the alien has been convicted of an aggravated felony. Carachuri-
Rosendo v. Holder, 570 F.3d 263, 265 (5th Cir. 2009) (citations omitted).
Notwithstanding, we retain jurisdiction to review facts and issues involving a
question of law. § 1252(a)(2)(D). Because Jimenez’ petition falls within this
exception, we review the BIA’s rulings of law de novo. See Carachuri-Rosendo,
570 F.3d at 265.
Jimenez contends that neither drug conviction is considered a felony under
the Controlled Substances Act (CSA), and thus, not an aggravated felony that
would render him ineligible for cancellation of removal. Jimenez asks us to
reverse the BIA’s findings that Jimenez has been convicted of a recidivist offense
and that the IJ failed to link Jimenez’ homosexuality and HIV/AIDS disease
properly together. The BIA found Jimenez removable under INA §
237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) because he is an alien who was
convicted of a crime relating to a controlled substance.
Jimenez’s two drug convictions constitute an aggravated felony. In United
States v. Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005), this Court
concluded that two state convictions for possession could be punished as a felony
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under the CSA’s recidivism provisions.1 Later, this Court in United States v.
Cepeda-Rios, 530 F.3d 333, 334-35 (5th Cir. 2008), stated its approach to this
issue in Sanchez-Villalobos was still viable after Lopez and again decided that
a second state possession offense punishable as a felony under federal law
qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Carachuri-
Rosendo, 570 F.3d at 266-67. Recently, this Court affirmed an en-banc decision
by the BIA in Carachuri-Rosendo, that determined that even though the
petitioner had been convicted twice of misdemeanor possession charges but was
not charged as a recidivist, the convictions met the definition of an aggravated
felony under the CSA. Id. at 265. Here, the facts are similar to those in
Carachuri-Rosendo because Jimenez also has two misdemeanor state drug
conviction that the BIA determined under this Court’s case law to meet the
definition of an aggravated felon for recidivist possession. Jimenez’s December
2000 conviction under California law require the same elements as a conviction
under federal possession would require. While Jimenez argues that use of
cocaine should not be considered the same as possession of cocaine, this
argument is foreclosed by our decision in United States v. Courtney, 979 F.2d 45,
49 (5th Cir. 1992), in which we determined that possession and use were not
distinct crimes with separate elements. Jimenez’s 2004 conviction under Florida
law constitutes his second conviction that may be considered together to meet
the definition of an aggravated felony under 21 U.S.C. § 844(a). See Sanchez-
Villalobos, 412 F.3d at 576-77. Thus, Jimenez’s two drug convictions render
him ineligible for cancellation of removal.
Jimenez also asks this Court to review his claim for withholding of
removal. But, as Jimenez merely disagrees with the Board’s finding of evidence
1
The Supreme Court in Lopez v. Gonzalez, 549 U.S. 47 (2006), abrogated one of the
Sanchez-Villalobos’ holdings but left intact this determination. See Carachuri-Rosendo, 570
F.3d at 266-67.
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No. 08-61126
and does not raise a constitutional claim or question of law, we lack jurisdiction
to review.
Therefore, the petition for review is DENIED.
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