Betancourt-Ramirez v. Gonzales , 165 F. App'x 369 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 8, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-51142
Summary Calendar
_______________________
LUIS BETANCOURT-RAMIREZ,
Petitioner-Appellant,
versus
ALBERTO GONZALES, U.S. ATTORNEY GENERAL, ET AL.,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Texas,
El Paso Division
No. 3:04-CV-342
Before JONES, Chief Judge, and DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Luis Betancourt-Ramirez brings this appeal, challenging
the determination of the Board of Immigration Appeals (“BIA”) that
his 1997 state conviction for possession of cocaine constituted an
aggravated felony and made him ineligible for cancellation of
removal. Due to the passage of the REAL ID Act while this appeal
was pending, Betancourt-Ramirez’s petition for a writ of habeas
corpus is converted into a timely filed petition for review of the
*
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opinion should not be published and is not precedent except under the limited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.
BIA decision. Because we conclude that Betancourt-Ramirez’s
conviction for possession of a controlled substance constituted an
aggravated felony, his petition is DENIED.
BACKGROUND
Luis Betancourt-Ramirez, a citizen and national of
Mexico, entered the United States as an immigrant in 1970. On
May 21, 1997, in Texas state court, Betancourt-Ramirez pleaded
guilty to the possession of a controlled substance, a felony. On
June 19, 2003, Betancourt-Ramirez was convicted of criminal
negligent homicide in Texas state court. The Department of
Homeland Security initiated removal proceedings against Betancourt-
Ramirez on July 22, 2003, and an immigration judge ultimately
determined that he was removable as an alien convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The
immigration judge found Betancourt-Ramirez’s conviction for
possession of a controlled substance — but not his criminal
negligent homicide conviction — to be an aggravated felony.
Betancourt-Ramirez appealed to the BIA, which affirmed
the immigration judge and dismissed his case. He then petitioned
the district court for habeas relief. The district court, citing
8 U.S.C. § 1252(a)(2)(C), concluded that it lacked jurisdiction
over Betancourt-Ramirez’s petition, and therefore denied relief.
Betancourt-Ramirez again appealed, and this court may review the
decision of the district court pursuant to 28 U.S.C. § 1291.
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DISCUSSION
Betancourt-Ramirez originally sought habeas relief
through the courts. However, the REAL ID Act, PUB. L. NO. 109-13,
119 STAT. 231 (MAY 11, 2005) divested the federal courts of
jurisdiction to hear habeas petitions attacking removal orders,
effective as of the Act’s passage. This court recently held in
Rosales v. Bureau of Immigrations & Customs Enforcement, 426 F.3d
733 (5th Cir. 2005), that habeas petitions on appeal as of May 11,
2005, such as Betancourt-Ramirez’s, “are properly converted into
petitions for review.” Id. at 736. Following Rosales, Betancourt-
Ramirez’s petition for habeas relief is thus converted into a
petition for review of the underlying BIA decision, and because his
petition addresses “constitutional claims or questions of law,”
this court has jurisdiction under 8 U.S.C. § 1252(b)(2)(D) to reach
the merits of his challenge. Id.
On a petition for review of a BIA decision, we review the
BIA’s rulings of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444 (5th Cir. 2001). We review the BIA’s findings of fact for
substantial evidence. Tesfamichael v. Gonzales, 411 F.3d 169, 175
(5th Cir. 2005).
The BIA held that Betancourt-Ramirez was an alien
convicted of an aggravated felony within the meaning of 8 U.S.C.
§ 1101(a)(43)(B), and was therefore ineligible for cancellation of
removal. With regard to drug-related crimes, it is established law
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in this circuit that if a “defendant’s prior conviction was a
felony under applicable state law and was punishable under the
[federal] Controlled Substances Act,” then such a conviction
qualifies as an aggravated felony for the purposes of
§ 1101(a)(43)(B). United States v. Hernandez-Avalos, 251 F.3d 505,
508 (5th Cir. 2001); see also United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997) (state felony punishable under
Controlled Substances Act constitutes aggravated felony for
purposes of Federal Sentencing Guidelines). There is no dispute
here that Betancourt-Ramirez’s 1997 conviction was for a felony in
the state of Texas, or that possession of cocaine is punishable
under the Controlled Substances Act. Under Hernandez-Avalos,
Betancourt-Ramirez committed an aggravated felony for the purposes
of § 1101(a)(43)(B), and he was therefore ineligible for cancella-
tion of removal.
However, Betancourt-Ramirez notes that in 1997, at the
time he pleaded guilty to possession of a controlled substance, he
would have been eligible to apply for cancellation of removal under
Immigration and Nationality Act § 240A. He therefore argues that
the BIA’s retroactive application of Hernandez-Avalos is
unconstitutional. This argument fails, however, as “it is well
settled that Congress has the authority to make past criminal
activity a new ground for deportation.” United States v. Madriz-
Alvarado, 383 F.3d 321, 334 (5th Cir. 2004)(quoting Ignacio v. INS,
955 F.2d 295, 298 (5th Cir. 1992)). Madriz-Alvarado guides our
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analysis here; in that case, an alien challenged the application of
8 U.S.C. § 1101(a)(48)(A), which defined the term “conviction,” as
being unconstitutionally retroactive. The alien argued that at the
time of his deferred adjudication, BIA precedent did not make such
deferred adjudication a “conviction.” Madriz-Alvarado, 383 F.3d at
334. The Madriz-Alvarado court denied habeas, however, noting that
Congress had the broad authority to define the scope of immigration
law, and could render an alien deportable “for past antisocial
conduct that not only did not result in a conviction but was not
even criminal when engaged in.” Id. at 335. Betancourt-Ramirez
makes a nearly identical argument here, claiming that the
definition of “aggravated felony” under 8 U.S.C. § 1101(a) as
interpreted by Hinojosa-Lopez and Hernandez-Avalos, cannot be
retroactively applied to his 1997 conviction. As with Madriz-
Alvarado, Betancourt-Ramirez’s constitutional challenge must be
rejected.
CONCLUSION
Betancourt-Ramirez’s 1997 conviction for possession of
cocaine constitutes an aggravated felony for the purposes of
8 U.S.C. § 1101(a)(43)(B). As a result, he is ineligible to apply
for cancellation of removal, and his petition for review is DENIED.
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