Mosqueda-Masiel v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 13, 2009
No. 08-60843 Charles R. Fulbruge III
Summary Calendar Clerk
BLANCA NELIA MOSQUEDA-MASIEL
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. A73 708 761
Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Blanca Nelia Mosqueda-Masiel (“Mosqueda”) petitions this
Court for a review of two decisions of the Board of Immigration Appeals (“BIA”).
First, Mosqueda contests whether the BIA properly found that her second
conviction for possession of a controlled substance was an aggravated felony,
which would divest this Court of jurisdiction to hear her petition for cancellation
of removal. Second, Mosqueda challenges whether the BIA properly denied her
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60843
subsequent motion to reopen despite her alleged prima facie eligibility for
temporary relief under a U-visa.
Mosqueda is a native and citizen of Mexico who became a lawful
permanent resident of the United States in 1996. In June 2006, Mosqueda pled
guilty and was convicted in the County Court at Law of Bexar County, Texas, of
possession of less than twenty-eight grams of alprazolam. In July 2006, she pled
nolo contendere and was convicted in the 187th Judicial District Court of Bexar
County, Texas, of felony possession of less than one gram of heroin. The
Department of Homeland Security charged Mosqueda as removable under
Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C. §
1227(a)(2)(B)(i), as an “alien who at any time after admission has been convicted
of a violation of . . . any law or regulation” relating to a controlled substance.
She was also charged as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), as an “alien who is convicted of an aggravated felony at any
time after admission.”
In a proceeding before an immigration judge (“IJ”), Mosqueda conceded she
was removable under INA § 237(a)(2)(B)(i), but challenged the charges under §
237(a)(2)(A)(iii), arguing that she had never been convicted of an aggravated
felony and seeking cancellation of removal. The IJ sustained both charges of
removability. Mosqueda appealed to the BIA, who sustained her appeal and
remanded to the IJ because the record did not clearly establish that her second
conviction occurred after her first conviction became final, a requisite basis for
finding Mosqueda convicted of an aggravated felony under the applicable federal
law. On remand, the IJ concluded that Mosqueda’s second conviction did occur
after the first conviction became final, sustained both charges of removability,
and found her statutorily ineligible for cancellation of removal. In August 2008,
the BIA affirmed this decision. Mosqueda now petitions for review of this BIA
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decision as well as the BIA’s October 2008 denial of her motion to reopen her
case for lack of jurisdiction.
This Court decides questions of jurisdiction de novo. Lopez-Elias v. Reno,
209 F.3d 788, 791 (5th Cir. 2000). INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C),
provides in pertinent part that “no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in section 212(a)(2) or 237(a)(2)(A)(iii).”
Thus, this Court is statutorily precluded from reviewing any removal order
based on commission of an aggravated felony. See Hernandez-Castillo v. Moore,
436 F.3d 516, 519 (5th Cir. 2006) (“The [REAL ID] Act amends 8 U.S.C. §
1252(a)(2)(C) to preclude all judicial review, habeas or otherwise, where a
removal order is based on, inter alia, the alien’s commission of an aggravated
felony.”).
However, we are not precluded from reviewing constitutional claims or
questions of law otherwise raised in the petition for review. See INA §
242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Brieva-Perez v. Gonzales, 482 F.3d 356,
359 (5th Cir. 2007). Thus, we have jurisdiction to consider the question of law
regarding whether Mosqueda is removable on the basis of an aggravated felony
drug trafficking conviction and therefore statutorily ineligible for cancellation
of removal. See Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006)
(“[T]he REAL ID Act allows the courts of appeals to review constitutional and
legal claims regarding removal orders even where the Act renders an order
otherwise unreviewable.”).
INA Section 101(a)(43)(B) provides that “illicit trafficking in a controlled
substance . . . , including a drug trafficking crime” is an aggravated felony. 8
U.S.C. § 1101(a)(43)(B). Section 924(c) defines a “drug trafficking crime” as “any
felony punishable under the Controlled Substances Act [‘CSA’].” 18 U.S.C. §
924(c)(2). Regardless of whether a state offense is classified as a misdemeanor
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or felony under state law, a state offense constitutes a “felony punishable under
the [CSA] only if it proscribes conduct punishable as a felony under that federal
law.” Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct. 625, 633 (2006) (internal
quotation marks omitted). This Court has held that where the defendant had
a prior state conviction for possession of a controlled substance, a subsequent
state conviction for possession would be punishable as a felony under the CSA.
United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005) (citing
21 U.S.C. § 844(a)); see also In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 386-88
(BIA 2007) (holding that Sanchez-Villalobos is controlling over Fifth Circuit
cases).
Mosqueda argues that the BIA erroneously gave the Sanchez-Villalobos
holding controlling weight, citing to a footnote in this Court’s opinion in Smith
v. Gonzales, 468 F.3d 272, 276 n.3 (5th Cir. 2006) (finding uncertainty in the
precedential effect of Sanchez-Villalobos’s alternative holding that a subsequent
state conviction for possession of a controlled substance is an aggravated felony).
However, any ambiguity created by the Smith footnote was resolved by In re
Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008), which reaffirmed that this
Court’s holding in Sanchez-Villalobos remains controlling. Even though
Sanchez-Villalobos was decided pre-Lopez, this Court found “nothing in the
[Supreme] Court’s opinion in Lopez that overrules our holding in Sanchez-
Villalobos. The analysis employed there is consistent with our earlier
‘hypothetical’ approach in Sanchez-Villalobos, viz., a state crime is to be deemed
a felony if it would have been prosecuted as such under federal law.” Id.Mosqueda’s second possession offense occurred after a prior, final conviction for
possession of a controlled substance. Thus, her second state conviction for
possession would be punishable as a felony under the CSA, as the IJ and BIA
properly determined. This Court lacks jurisdiction to review the BIA’s decision
pursuant to INA § 242(a)(2)(C).
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Finally, Mosqueda contends that although the BIA lacked jurisdiction over
her U-visa application, it nonetheless was required by its precedent in In re
Velarde, 23 I. & N. Dec. 253 (BIA 2002), and In re Garcia, 16 I. & N. Dec. 653(BIA 1978), to grant her motion to reopen because she submitted evidence that
she was prima facie eligible for adjustment status.1 However, in the cases
Mosqueda cites, the BIA could properly reopen proceedings because the IJ would
have jurisdiction to adjudicate the subsequent application for adjustment of
status once the pending immigrant visa application was approved. Here, even
if Mosqueda is correct regarding her prima facie eligibility for adjustment status
and USCIS were to approve her application for a U-visa, Mosqueda would not
be eligible for adjustment of status before an IJ. A U-visa is statutorily non-
immigrant, and IJ action requires that an applicant have an approved
immigrant visa. If Mosqueda wishes a stay of removal pending her U-visa
application, she must make that request directly with USCIS. 8 C.F.R. §
214.14(c)(1)(ii). Thus, the BIA properly denied her motion to reopen for lack of
jurisdiction.
Mosqueda’s petition for review is DISMISSED on both grounds for lack of
jurisdiction.
1
A “U-visa” is a non-immigrant visa created for crime victims who have suffered
physical or mental abuse and have been or will likely be helpful to law enforcement authorities
in investigating and prosecuting criminal activity. INA § 101(13)(U), 8 U.S.C. § 1101(13)(U).
Mosqueda argues she is prima facie eligible for temporary relief under a U-visa because she
testified against a rapist in a jury trial that resulted in conviction.
5