           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 19, 2009
                                     No. 09-60115
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ARMIN EIVANAKI ESMAILI, also known as Armin Eivanaki Esmail,

                                                   Petitioner
v.

ERIC H. HOLDER, JR.,

                                                   Respondent


                               Petition for Review of the
                             Board of Immigration Appeals
                                BIA No. A042-755-771


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Armin Eivanaki Esmaili seeks review of a Board of Immigration Appeals
(BIA) decision affirming the Immigration Judge’s (IJ) finding that Esmaili was
removable and ineligible for relief from removal due to his criminal convictions.
We DENY the petition for review.
       Esmaili, who was a lawful permanent resident, was convicted in state
court of marijuana possession on two separate occasions – April 4, 2001 and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60115

February 6, 2007. Thereafter, he was convicted in state court of possession of
cocaine on August 8, 2008, following an April 8, 2008 arrest.
      The IJ found that the August 2008 conviction was a controlled substance
violation, and the BIA affirmed. The IJ also found that Esmaili was ineligible
for relief from removal because he was convicted of the equivalent of an
aggravated felony. As to the latter determination, the IJ placed the burden of
proof on Esmaili.    The BIA, relying upon its decision in In the Matter of
Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), similarly affirmed this finding
and holding.    The BIA in Carachuri-Rosendo concluded that, under our
precedent, a second drug possession offense committed after a first drug
possession offense was final is the equivalent of an aggravated felony under
federal law, even if no recidivist prosecution was conducted in state court. Cf.
8 U.S.C. § 1101(a)(43)(B) & 8 U.S.C. § 1229b(a)(3).
      In his appeal to our court, Esmaili relied entirely upon the fact that the
BIA’s decision in Carachuri-Rosendo was on appeal to this court and might be
reversed. However, after Esmaili filed his opening brief (but before the deadline
for the Government’s brief and Esmaili’s reply), we affirmed our prior precedent
in Carachuri-Rosendo v. Holder, 570 F.3d 263, 268 (5th Cir. 2009), petition for
cert. filed, 78 U.S.L.W. 3058 (U.S. Jul. 15, 2009)(No. 09-60). Esmaili has made
no argument in this case that survives our holding in that case. Accordingly, we




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are bound by prior precedent to deny Esmaili’s petition for review.1 Review
DENIED.




       1
          The question of whether an offense constitutes an “aggravated felony” under the
immigration laws is a question of law over which we have jurisdiction. 8 U.S.C. §
1252(a)(2)(C) & (D). However, the Government argues that we lack jurisdiction over this case
because Esmaili does not have a “colorable” question of law concerning his conviction.
Although we conclude that Esmaili’s arguments are foreclosed by our precedent, we do not find
his arguments so frivolous that they deprive us of our jurisdiction over questions of law, such
as this one. Unlike the case cited by the Government – Marquez-Marquez v. Gonzales, 455
F.3d 548, 561 (5th Cir. 2006) – Esmaili does not challenge a discretionary determination. His
challenge is solely to the question of whether his convictions preclude the exercise of
discretion. We conclude that we have jurisdiction over this appeal.

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