Serrano-Fonseca v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 07-60584
Summary Calendar Charles R. Fulbruge III
Clerk
JOSE LUIS SERRANO-FONSECA
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A45 181 375
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Luis Serrano-Fonseca petitions for review of an order by the Board
of Immigration Appeals (BIA), affirming the order of removal by the
Immigration Judge (IJ). He presents two issues.
First, he contends: pursuant to Lopez v. Gonzales, 127 S. Ct. 625 (2006),
the IJ erred when he determined Serrano was convicted of an aggravated felony
and therefore was not eligible for cancellation of removal. Under 8 U.S.C. §
*
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should not be published and is not precedent except under the limited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. 07-60584
1252(a)(2)(C), federal courts lack jurisdiction to review a final order of removal
against an alien who is removable because he was convicted of an aggravated
felony. However, such courts have jurisdiction to consider whether Serrano’s
prior offense qualifies as an aggravated felony. See Omari v. Gonzales, 419 F.3d
303, 306 (5th Cir. 2005).
The definition of an “aggravated felony” includes “illicit trafficking in a
controlled substance . . . including a drug trafficking crime (as defined in section
924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B). A “drug trafficking crime” includes
“any felony punishable under the Controlled Substances Act.” 18 U.S.C. §
924(c)(2). A state offense constitutes a felony punishable under the Controlled
Substances Act only if it involves conduct punishable as a felony under federal
law. Lopez, 127 S. Ct. at 629-33. Serrano’s delivery of marijuana would subject
him to a potential maximum federal sentence of five years in prison. See 21
U.S.C. § 841(b)(1)(D). Because his offense was punishable by imprisonment for
more than one year, it qualifies as an aggravated felony under federal law. See
21 U.S.C. § 802(44).
For his other issue, Serrano contends he was denied due process because
the IJ failed to hold a merits hearing before issuing an order of removal. To the
extent that he is asserting he was entitled to a merits hearing to present
evidence about the drug quantity involved in his offense, he waived the claim
because he never requested a hearing on this ground. See Zhang v. Gonzales,
432 F.3d 339, 346-47 (5th Cir. 2005). Moreover, Serrano’s contentions about the
drug quantity would not have affected the finding that his prior conviction
constituted an aggravated felony. To the extent that Serrano is asserting he was
entitled to a hearing to present evidence relating to his request for cancellation
of removal, he has no due process right to a hearing for discretionary relief. See
Gutierrez-Morales v. Homan, 461 F.3d 605, 610 (5th Cir. 2006).
DENIED.
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