Charles v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2008
No. 07-60279
Summary Calendar Charles R. Fulbruge III
Clerk
RAE CURTIS CHARLES,
Also Known as Ray Charles,
Petitioner,
v.
MICHAEL B. MUKASEY,
U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A31 229 974
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60279
Rae Charles, a native and citizen of Trinidad and Tobago, petitions for re-
view of a final order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal of the immigration judge’s finding of removability and denial of his appli-
cations for withholding of removal and relief under the Convention Against Tor-
ture (“CAT”). The BIA determined that Charles’s convictions of unlawful posses-
sion of marihuana in violation of N.Y. PENAL LAW § 221.05 (McKinney 2003) and
endangering the welfare of a child in violation of N.Y. PENAL LAW § 260.10 (Mc-
Kinney 2003) are aggravated felony convictions for which Charles is removable
pursuant 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA concluded that Charles’s convic-
tions of unlawful possession of marihuana and the criminal sale of marihuana
in the fourth degree in violation of N.Y. PENAL LAW § 221.40 (McKinney 1988)
are controlled substance offenses for which he is removable pursuant to § 1227-
(a)(2)(B)(i). The BIA further determined that Charles’s conviction of endanger-
ing the welfare of a child is a crime of domestic violence, stalking, or child abuse,
neglect, or abandonment for which he is removable pursuant to § 1227(a)(2)-
(E)(i).
Charles argues that the BIA erred by finding that his convictions of pos-
session of marihuana and endangering the welfare of a child are aggravated fel-
ony offenses. As amended by the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(C)
and (D) generally prohibits judicial review of a final order of removal against an
alien who is removable by reason of having committed a criminal offense under
8 U.S.C. § 1182(a)(2)(A)(i)(II), including a controlled substance offense, or an ag-
gravated felony under § 1227(a)(2)(A)(iii), except as to “constitutional claims or
questions of law.” § 1252(a)(2)(C), (D).
This court ordinarily would retain jurisdiction to review Charles’s petition,
because the question whether his conviction is an aggravated felony is a question
of law. See Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319 (5th Cir. 2005);
§ 1252(a)(2)(C), (D). But, his failure to challenge the BIA’s finding of removabil-
ity based on his controlled substance convictions “independently triggers” the
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No. 07-60279
jurisdiction-stripping provision of § 1252 and deprives us of jurisdiction to review
the petition for review. See § 1252(a)(2)(C), (D); Flores-Garza v. INS, 328 F.3d
797, 802-03 (5th Cir. 2003). We thus need not consider the merits of Charles’s
challenge to the BIA’s finding of removability on the basis of an aggravated fel-
ony conviction. See id.Because Charles also fails to challenge the BIA’s denial of his application
for withholding of removal and relief under the CAT, he has waived any chal-
lenge to the finding of removability on those grounds. See Soadjede v. Ashcroft,
324 F.3d 830, 838 (5th Cir. 2003). The petition for review is DISMISSED.
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