Claudia Pena-Hernandez v. Eric Holder, Jr. , 485 F. App'x 662 ( 2012 )

Case: 11-60824 Document: 00511952021 Page: 1 Date Filed: 08/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 9, 2012
No. 11-60824
Summary Calendar Lyle W. Cayce
Clerk
CLAUDIA PENA-HERNANDEZ, also known as Claudia Pena Hernandez, also
known as Claudia Hernandez Pena,
Petitioner,
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 891 897
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mexican citizen Claudia Pena-Hernandez petitions for review of the order
of the Board of Immigration Appeals (BIA) dismissing her appeal from the order
of the immigration judge denying her application for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a). She was found ineligible for cancellation of
removal because she had not shown that her Texas conviction for delivery of a
controlled substance did not constitute an aggravated felony. Pena-Hernandez
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60824 Document: 00511952021 Page: 2 Date Filed: 08/09/2012
No. 11-60824
contends that neither of her drug convictions constituted aggravated felonies
under the categorical approach employed by this court. She suggests that her
failure to provide new evidence at her second IJ hearing is irrelevant, as the BIA
already had held that the state-court documents in the record were insufficient
to prove up an aggravated felony.
While the Texas offense of delivery of a controlled substance in violation
of section 481.112(a) of the Texas Health and Safety Code can be based on an
offer to sell the controlled substance, actual physical delivery of a controlled
substance also violates § 481.112(a). Tex. Health & Safety Code Ann.
§§ 481.002(8), 481.112(a). This is indistinguishable from the federal offense of
distribution of a controlled substance, which is punishable as a felony under the
Controlled Substances Act. See 21 U.S.C. § 841(a)-(b). The Texas offense
therefore may be committed in a way that falls within the definition of an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2).
In the context of her application for cancellation of removal, Pena-
Hernandez bore the burden of showing that she had not been convicted of an
aggravated felony. Vasquez-Martinez v. Holder, 564 F.3d 712, 715-16 (5th Cir.
2009). She did not carry this burden, and she therefore failed to demonstrate
that she was eligible for cancellation of removal.
PETITION DENIED.
2