Hernandez DeAnguiano v. Mukasey ( 2008 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 21, 2008
    No. 07-60469
    Summary Calendar                Charles R. Fulbruge III
    Clerk
    ELIZABETH HERNANDEZ DE ANGUIANO
    Petitioner
    v.
    MICHAEL B. MUKASEY, U. S. ATTORNEY GENERAL
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A42 913 514
    Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Elizabeth Hernandez De Anguiano seeks review of an order by the Board
    of Immigration Appeals (BIA) finding her removable because her conviction for
    possessing marijuana in violation of Texas Health & Safety Code § 481.121(b)(4),
    constituted both a controlled substance violation and a conviction for an
    aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). De Anguiano
    argues that the BIA erred when it found her removable both as an aggravated
    *
    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    should not be published and is not precedent except under the limited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. 07-60469
    felon and as an alien convicted of a controlled substance violation. De Anguiano
    challenges the BIA’s denial of her request to terminate her removal proceedings
    pursuant to In re Manrique, 21 I & N. Dec. 58 (BIA 1995). She contends that the
    BIA’s denial of that request violated her rights under both the Equal Protection
    and Due Process Clauses. Finally, De Anguiano contends that the BIA’s opinion
    should be vacated and her case remanded so that she may seek cancellation of
    removal pursuant to 8 U.S.C. § 1229b(a). 1
    We have no jurisdiction to review removal orders based on an alien’s
    commission of an aggravated felony or to review challenges to discretionary
    denials of relief under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(C). However,
    we retain jurisdiction to consider in a petition for review constitutional claims
    and questions of law such as whether an alien’s prior offense qualifies as an
    aggravated felony. § 1252(a)(2)(D); Patel v. Mukasey, 
    526 F.3d 800
    , 802 (5th Cir.
    2008). We also retain jurisdiction to consider an alien’s statutory eligibility for
    discretionary relief. Bravo v. Ashcroft, 
    341 F.3d 590
    , 592 (5th Cir. 2003).
    The BIA erred when it found De Anguiano removable as an aggravated
    felon as that term is defined for immigration purposes in 8 U.S.C.
    § 1101(a)(43)(B). De Anguiano’s state possession offense did not involve illicit
    trafficking in a controlled substance and cannot be considered a drug trafficking
    crime under § 924(c)(2) because the conduct is not punishable as a felony under
    the Controlled Substances Act. See 21 U.S.C. § 844(a); Lopez v. Gonzales, 
    127 S. Ct. 625
    , 629-33 (2006); Arce-Vences v. Mukasey, 
    512 F.3d 167
    , 170-71 (5th Cir.
    2007).
    We lack jurisdiction to consider De Anguiano’s claims that the BIA erred
    in finding that she was removable as an alien convicted of a drug trafficking
    1
    De Anguiano’s argument that the BIA's order of removal violates
    international law and treaty obligations between the United States and Mexico
    is deemed waived as inadequately briefed. See Soadjede v. Ashcroft, 
    324 F.3d 830
    , 833 (5th Cir. 2003).
    2
    No. 07-60469
    offense. De Anguiano failed to exhaust her administrative remedies by raising
    those claims before the BIA. Roy v. Ashcroft, 
    389 F.3d 132
    , 137 (5th Cir. 2004).
    De Anguiano has not shown that the BIA erred in determining that her
    removal proceedings could not be terminated pursuant to In re Manrique
    because the policy exception to removal in that case had been superceded by the
    enactment of § 1101(a)(48)(A). See Madriz-Alvarado v. Ashcroft, 
    383 F.3d 321
    ,
    331 (5th Cir. 2004). Nor has De Anguiano shown that the BIA’s decision to deny
    her that relief violated her rights under the Constitution. Salazar-Regino v.
    Trominski, 
    415 F.3d 436
    , 452 (5th Cir. 2005), vacated on other grounds,
    Salazar-Regino v. Moore, 
    127 S. Ct. 827
    (2006); 
    Madriz-Alvarado, 383 F.3d at 332
    ; Moosa v. INS, 
    171 F.3d 994
    , 1001-02 (5th Cir. 1999); Anetekhai v. INS, 876
    F.2d 1218,1222 (5th Cir. 1989).
    Finally, De Anguiano has not shown that she would have been statutorily
    eligible for cancellation of removal if she had not been erroneously classified as
    an aggravated felon. De Anguiano does not meet the eligibility requirements for
    cancellation of removal because she did not reside in the United States
    continuously for seven years after having been admitted in any status.
    § 1229b(a)(2). Remand is not necessary in this case.
    The petition for review is DENIED.
    3