Bruce v. Holder ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 14, 2009
No. 08-60524 Charles R. Fulbruge III
Summary Calendar Clerk
DENNIS BONDKRAFT BRUCE, also known as Edzeil Bennett,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
A26 145 437
Before BENAVIDES, PRADO, AND SOUTHWICK, Circuit Judges.
PER CURIAM:*
Petitioner Dennis Bondkraft Bruce, a native and citizen of Jamaica, seeks
review of the Board of Immigration Appeals’ (Board) order that affirmed the
removal decision by the Immigration Judge (IJ) on the basis of new charges of
removability. We remanded Bruce’s second appeal to the Board for review
following the Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47 (2006)
for the proper application of Bruce’s drug conviction and qualification as an
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-60524
aggravated felony under the Controlled Substances Act (CSA). The Board
reaffirmed its earlier decision that the convictions constitute a drug trafficking
aggravated felony because the marijuana convictions could have been punishable
under the recidivist provision of 21 U.S.C. § 844(a) (2006). Thus, Bruce was
subject to removal because of his convictions and rendered ineligible for
cancellation of removal under the Immigration and Nationality Act (INA).
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 Bruce’s petition falls within this
exception, we review the Board’s rulings of law de novo. See Carachuri-Rosendo,
570 F.3d at 265.
Bruce specifically challenges the determination that his convictions for
possession of a controlled substance constitute “aggravated felonies” under 8
U.S.C. § 1101(a)(43)(B). Bruce contends that because he was never convicted
under a recidivist statute, that his offenses should not be considered aggravated
felonies. For the reasons set forth below, we dismiss his petition in part for lack
of jurisdiction and deny in part because the Board correctly decided that Bruce’s
convictions constitute an aggravated felony.
Earlier this year, we noted that federal statutes referring to drug
trafficking also includes recidivist state possession offenses. See Carachuri-
Rosendo, 570 F.3d at 265 (quoting United States v. Cepeda-Rios, 530 F.3d 333,
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No. 08-60524
335 (5th Cir. 2008)). The Supreme Court in Lopez decided that if the conduct
proscribed by the state offense could have been prosecuted under the CSA as a
felony, then the state conviction qualifies as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). Lopez, 549 U.S. at 60. 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 under the CSA’s recidivism
provisions.1 Later, this Court in Cepeda-Rios stated its approach to this issue
from 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). 530 F.3d at
334-35. The Carachuri-Rosendo court affirmed the Board’s en-banc decision
determining 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. 570 F.3d
at 265.
Here, the facts are similar to those in Carachuri-Rosendo because Bruce
asserts that his state possession convictions cannot meet the definition of an
aggravated felony under the CSA since he was not charged as a recidivist. This
argument is inapposite to what the Carachuri-Rosendo court explicitly stated.
570 F.3d at 265. Bruce’s convictions for possession of a controlled substance
constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. §
1101(a)(43)(B) because his third offense would have been punishable under the
recidivist provision of 21 U.S.C. § 844(a) as a felony, and by extension, a drug
trafficking aggravated felony. Thus, Bruce is removable under INA §
237(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(C).
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. 08-60524
Bruce also argues that the Board abused its discretion for failing to
address his motion to remand and motion to change venue and that these
failures resulted in “substantial constitutional challenges.” Bruce’s assertions
do not involve a constitutional claim; instead they merely ask this Court to
replace the Board’s rulings with a new outcome. See Hadwani v. Gonzales, 445
F.3d 798, 800-01 (5th Cir. 2006) (stating that mere propositions constituting
abuse of discretion arguments cannot be cloaked in constitutional garb and pass
as a constitutional claim); see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271
(5th Cir. 2001) (preventing the petitioner from establishing jurisdiction by
cloaking arguments in constitutional garb). Because Bruce merely disagrees
with the Board’s decision and does not raise a constitutional claim or question
of law on these challenges, we lack jurisdiction to review.
Accordingly, the petition for review is DENIED.
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