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Hernandez DeAnguiano v. Mukasey , 289 F. App'x 18 ( 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should not be published and is not precedent except under the limited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