Asrar v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2007
Charles R. Fulbruge III
Clerk
No. 06-60053
Summary Calendar
MUHAMMAD NAVID ASRAR,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 961 229
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Muhammad Navid Assar, a native and citizen of Pakistan,
petitions for review of the order of the Board of Immigration
Appeals (BIA) adopting and affirming the immigration judge’s (IJ)
decision denying asylum relief and withholding of removal under
the Immigration and Naturalization Act (INA) and the Convention
Against Torture (CAT).
The REAL ID Act generally precludes judicial review of
discretionary decisions of the Attorney General, including the
grant or denial of a waiver of removability. 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this opinion should not be published and is not precedent except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. 06-60053
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§ 1252(a)(2)(B)(ii); see Gutierrez-Morales v. Homan, 461 F.3d
605, 609 (5th Cir. 2006). The Act also precludes judicial review
of any removal order against an alien who is removable based on
commission of an aggravated felony. § 1252(a)(2)(C); see
Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006),
petition for cert. denied, 127 S. Ct. 40 (2006). However, none of
these provisions “shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review . . . .” § 1252(a)(2)(D).
This court also retains jurisdiction to determine whether
the underlying facts deprive this court of jurisdiction. See
Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001). Asrar
acknowledges that he was convicted of unlawful possession of
ammunition in violation of 18 U.S.C. § 922(g)(5)(A) and
924(a)(2), but denies that this constitutes an aggravated felony
for purposes of the INA. Thus, the jurisdictional facts that
must be reviewed in this case are whether Asrar is an alien who
is removable by reason of having committed an offense covered by
8 U.S.C. § 1252(a)(2)(C).
This court conducts a de novo review to determine whether
the particular statue that the prior conviction is under falls
within the relevant INA definition. Omari v. Gonzales, 419 F.3d
303, 306-07 (5th Cir. 2005). This “categorical approach”
requires that this court look to the statute under which the
petitioner was convicted, rather than the facts underlying the
No. 06-60053
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conviction, and compare the statutory elements to the definition
of an aggravated felony in 8 U.S.C. § 1101(a)(43). Larin-Ulloa
v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006).
Asrar was convicted for unlawful possession of ammunition in
violation of § 922(g)(5)(A). Section 1101(a)(43), includes in
its definition of “aggravated felony,” an offense described in
§ 922(g)(5). See § 1101(a)(43)(E)(ii). Because the statute of
conviction falls within the relevant INA definition, and because
Asrar’s petition fails to raise either a constitutional claim or
a question of law, this court lacks jurisdiction to review
Asrar’s challenge to the BIA’s decision affirming the IJ’s denial
of asylum relief and withholding of removal under the INA and
CAT.
Accordingly, the petition is DISMISSED for lack of
jurisdiction.