Lagos v. Keisler , 250 F. App'x 562 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2327
FELIX LAGOS,
Petitioner,
versus
PETER D. KEISLER, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A74-078-327)
Submitted: August 15, 2007 Decided: October 9, 2007
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Ivan Yacub, LAW OFFICE OF IVAN YACUB, Falls Church, Virginia, for
Petitioner. Peter D. Keisler, Assistant Attorney General, David V.
Bernal, Assistant Director, Anthony P. Nicastro, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felix Lagos, a native and citizen of Honduras, petitions
for review of an order of the Board of Immigration Appeals denying
his motion to reopen as untimely filed. For the reasons discussed
below, we dismiss the petition for review for lack of jurisdiction.
Under 8 U.S.C.A. § 1252(a)(2)(C) (West 2005), we lack
jurisdiction, except as provided in 8 U.S.C.A. § 1252(a)(2)(D)
(West 2005), to review the final order of removal of an alien
convicted of certain enumerated crimes, including offenses covered
in 8 U.S.C. § 1182(a)(2) (2000). Because Lagos was found removable
for having been convicted of a controlled substance offense as
defined in 8 U.S.C. § 1182(a)(2)(A)(i)(II), under § 1252(a)(2)(C),
we have jurisdiction “to review factual determinations that trigger
the jurisdiction-stripping provision, such as whether [Lagos] [i]s
an alien and whether []he has been convicted of [a controlled
substance offense].” Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th
Cir. 2002); see Lewis v. INS, 194 F.3d 539, 542-43 (4th Cir. 1999)
(same). If the predicate conditions are found, then, under
8 U.S.C.A. § 1252(a)(2)(C), (D), we can only consider
“constitutional claims or questions of law.” See Mbea v. Gonzales,
482 F.3d 276, 278 n.1 (4th Cir. 2007).
Because we find that Lagos is indeed an alien who has
been convicted of a controlled substance offense, see Cruz-Garza v.
Ashcroft, 396 F.3d 1125, 1128 (10th Cir. 2005); Matter of Roldan-
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Santoyo, 22 I. & N. Dec. 512 (B.I.A. 1999), vacated on other
grounds sub nom Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000), § 1252(a)(2)(C) divests us of jurisdiction over the petition
for review, except to the extent that Lagos raises a constitutional
issue or question of law. He raises only one issue that arguably
could be considered a question of law in his petition for review,*
namely, whether the ninety-day time period for filing a motion to
reopen is subject to equitable tolling. Lagos does not challenge
the legal standard for equitable tolling, however, but simply
disagrees with the Board’s factual determination that equitable
tolling was not warranted in his case. We find that this is not a
“question of law” within the meaning of the REAL ID Act and is
merely a factual issue over which we lack jurisdiction. See
Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006).
Accordingly, we dismiss the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DISMISSED
*
Lagos does not raise any constitutional issues in his
petition for review.
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