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

                                                 FILED
                                                                         November 4, 2009
                                     No. 08-60579
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MACDONALD OKECHUKWU OSUAGWU

                                                   Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A71 957 896


Before DAVIS, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Macdonald Okechukwu Osuagwu, a native and citizen of Nigeria, petitions
for review of the Board of Immigration Appeals’ (BIA’s) dismissal of his appeal
from the immigration judge’s final order of deportation and determination of
Osuagwu’s ineligibility for cancellation of removal, pursuant to 8 U.S.C.
§ 1229b(a) (providing for cancellation of removal for certain permanent
residents), because he had committed an aggravated felony.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60579

      On more than one occasion since his admission to the United States,
Osuagwu has been convicted in state court of possession of a controlled
substance. He contends his classification as an aggravated felon under federal
law, based on his state drug-possession convictions, is improper because: (1) his
subsequent conviction did not involve a finding that he was a recidivist under
state law; and (2) he was sentenced to serve less than a year in prison for this
conviction. He also claims denial of his application for cancellation of removal
violates his due-process and equal-protection rights. Osuagwu has failed to
adequately brief his other contentions. See, e.g., Perillo v. Johnson, 79 F.3d 441,
443 n.1 (5th Cir. 1996) (holding attempts to incorporate by reference previous
briefs are insufficient to preserve error); Wang v. Ashcroft, 260 F.3d 448, 452
(5th Cir. 2001) (holding we do not have jurisdiction to consider claims not
presented before the BIA, such as Osuagwu’s assertion that his second
conviction was flawed or nonfinal).
      Our recent case law confirms the BIA correctly determined Osuagwu had
committed an     aggravated felony for immigration-law           purposes.     See
Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-67 (5th Cir. 2009), petition for
cert. filed 78 U.S.L.W. 3058 (U.S. 15 July 2009) (No. 09-60). “[A] second state
possession offense that could have been punished as a felony under federal law
qualifie[s] as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)”. Id. at
266–67. Because Osuagwu’s second offense could have been prosecuted as a
felony under federal law, see 21 U.S.C. § 844(a) (setting out certain drug offenses
and punishments), he was properly determined to be ineligible for discretionary
cancellation of removal.
       Osuagwu’s due-process claim fails because he has no due-process rights
in connection with his application for this type of discretionary relief. See
Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (holding “the failure to
receive relief that is purely discretionary in nature does not amount to a



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deprivation of a liberty interest”, in which case no due process rights exist
(quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999))).
      Finally, Osuagwu’s equal-protection claim fails because he has not shown
“the existence of purposeful discrimination”. See McCleskey v. Kemp, 481 U.S.
279, 292 (1987) (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).
      DENIED.




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