Louison-Pierre v. Holder , 321 F. App'x 388 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 13, 2009
No. 08-60531
Summary Calendar Charles R. Fulbruge III
Clerk
TITUS PATRICK LOUISON-PIERRE, also known as Titus P Louison, also
known as Titus Pierrelouis
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. A43 044 966
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Titus Patrick Louison-Pierre is a native and citizen of St. Lucia. He
petitions this court for review of a final order of the Board of Immigration
Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) order of
removal. Louison-Pierre was found to be removable as an alien convicted of an
aggravated felony and a controlled substance offense.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60531
When, as in this case, the BIA relied in part on the IJ’s decision, this court
will review the decisions of the BIA and the IJ. See Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 348 (5th Cir. 2002). Legal conclusions are reviewed de novo;
factual findings are reviewed for substantial evidence. Mikhael v. INS, 115 F.3d
299, 302 (5th Cir. 1997). This court lacks “jurisdiction to review any final order
of removal against an alien who is removable by reason of having committed”
certain criminal offenses, including a controlled substance offense or an
aggravated felony. 8 U.S.C. §§ 1252(a)(2)(C) and 1227(a)(2)(A)(iii), (a)(2)(B).
However, this court does have jurisdiction to review its own jurisdiction and to
review constitutional claims or questions of law. Marquez-Marquez v. Gonzales,
455 F.3d 548, 560-61 (5th Cir. 2006); § 1252(a)(2)(D).
Louison-Pierre’s primary argument is that the IJ and BIA erroneously
concluded that his prior conviction on which the removal order is premised is
sufficiently final despite a pending direct appeal of that conviction. This court
has rejected this argument, holding that a conviction remains effective for
immigration purposes even if a direct appeal is pending. Garcia-Maldonado v.
Gonzalez, 491 F.3d 284, 290 (5th Cir. 2007); see also Moosa v. INS, 171 F.3d 994,
1009 (5th Cir. 1999) (holding that “[t]here is no indication that the finality
requirement imposed . . . prior to 1996, survive[d] the new definition of
‘conviction’ found in IIRIRA § 322(a)”). Moreover, to the extent Louison-Pierre
argues that his case is factually distinguishable from Garcia-Maldonado, that
argument also fails. Since briefing in this case closed, Louison-Pierre’s
conviction and his sentence for violation of probation were affirmed. See State
v. Louison, No. A-5106-05T4, 2008 WL 4647733 (N.J.Super.A.D. Oct. 20, 2008),
cert. denied, 962 A.2d 530 (N.J. Dec. 15, 2008).
Louison-Pierre also contends that the IJ and BIA erred by ignoring Board
precedent regarding finality of convictions for immigration purposes.
Louison-Pierre’s argument has no merit. Because his immigration case was
properly heard in Oakdale, Louisiana, where he was detained, the IJ and BIA
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No. 08-60531
are bound only by this circuit’s decisions. Peters v. Ashcroft, 383 F.3d 302, 306
n.2 (5th Cir. 2004) (citing § 1252(b)(2)). Consequently, the IJ and the BIA were
bound to apply this court’s decisions in Moosa and Garcia-Maldonado. See
United States v. Hernandez-Avalos, 251 F.3d 505, 508 n.2 (5th Cir. 2001)
(citation omitted); Arce-Vences v. Mukaskey, 512 F.3d 167, 172 (5th Cir. 2007).
Finally, Louison-Pierre argues that Garcia-Maldonado was incorrectly
decided and urges this court to reconsider that decision. A panel of this court
may not overrule a decision of another panel absent intervening Supreme Court
precedent or an en banc decision of this court. See Hogue v. Johnson, 131 F.3d
466, 491 (5th Cir. 1997). Because neither the Supreme Court nor the en banc
court has overruled Garcia-Maldonado, Louison-Pierre’s argument is foreclosed
by this court’s precedent.
The BIA did not err in concluding that Louison-Pierre’s prior conviction
was effective for immigration purposes. As an alien convicted of an aggravated
felony and a controlled substance offense, Louison-Pierre was removable, as
found by the BIA. See § 1227(a)(2)(A)(iii) and (a)(2)(B)(i).
The petition for review is DENIED.
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