Patricia Duran-Perez v. Eric Holder, Jr. , 439 F. App'x 327 ( 2011 )

Case: 10-60909 Document: 00511582273 Page: 1 Date Filed: 08/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2011
No. 10-60909
Summary Calendar Lyle W. Cayce
Clerk
PATRICIA DURAN-PEREZ, also known as Patricia Duran,
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. A034 635 381
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Patricia Duran-Perez (Duran) petitions this court for review following the
Board of Immigration Appeals’ (BIA) dismissal of her appeal of the immigration
judge’s (IJ) determination that she was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(a)(3). The BIA determined that based on the
documentary evidence, which included the criminal complaint and the probation
violation report reflecting the outstanding restitution amount exceeding $10,000,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-60909 Document: 00511582273 Page: 2 Date Filed: 08/24/2011
No. 10-60909
Duran did not meet her burden of showing that the prior conviction was not an
aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(M).
In general, this court lacks jurisdiction to consider challenges to a removal
order where the alien is ordered removed on the ground that she has committed
an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C); Hernandez-Castillo v. Moore,
436 F.3d 516, 519 (5th Cir. 2006). However, this court retains jurisdiction over
constitutional and legal questions raised in a petition for review. See
§ 1252(a)(2)(D); Hernandez-Castillo, 436 F.3d at 519. Because Duran raises only
constitutional and legal claims in her petition, we have jurisdiction to consider
the petition. We review only the decision of the BIA and will consider the IJ’s
decision only to the extent that it affects the BIA’s decision. Beltran-Resendez
v. INS, 207 F.3d 284, 286 (5th Cir. 2000). The BIA’s determinations on
questions of law are reviewed de novo. Id. Constitutional claims also are
reviewed de novo. Danso v. Gonzales, 489 F.3d 709, 712 (5th Cir. 2007).
Duran has not cited any statutory authority which requires that the record
contain a transcript of the master calender hearing at which she admitted the
factual allegations in the notice to appear. Further, Duran has not alleged any
substantial prejudice resulting from the lack of the transcript. See Bolvito v.
Mukasey, 527 F.3d 428, 438 (5th Cir. 2008). Accordingly, her assertion that the
matter should be remanded based on a lack of transcript fails.
Duran argues that the BIA’s determination whether her welfare fraud
conviction qualified as an aggravated felony should only have been based on the
record of her conviction. She maintains that the record was sufficient to show
that the conviction was not an aggravated felony so as to preclude her from
cancellation of removal. This argument is foreclosed by Nijhawan v. Holder, 129
S. Ct. 2294, 2299-03 (2009). Duran’s petition for review is DENIED.
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