     Case: 15-60693      Document: 00513604754         Page: 1    Date Filed: 07/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60693                        United States Court of Appeals

                                  Summary Calendar
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           July 22, 2016

NELSA NEREIDA REYES ALVARADO,                                             Lyle W. Cayce
                                                                               Clerk
                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A070 620 875


Before REAVLEY, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Mexican citizen Nelsa Nereida Reyes Alvarado petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing her appeal from
the order of the immigration judge denying her application for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a).                She was found ineligible for
cancellation of removal because she had not shown that her Texas conviction
for possession with the intent to deliver a controlled substance did not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-60693

constitute an aggravated felony. Reyes Alvarado contends that the Texas
statute under which she was convicted, Texas Health & Safety Code § 481.112,
is not divisible.    Accordingly, she argues that, in analyzing whether her
conviction for violating § 481.112 constitutes an “aggravated felony” for the
purposes of § 1229b(a)(3), we are limited to the categorical approach and
prohibited from employing the modified categorical approach. She further
argues that, because § 481.112 criminalizes offers to sell a controlled substance
and the Controlled Substances Act (CSA) does not, a violation of § 481.112 may
or may not constitute an “aggravated felony” for the purposes of
§ 1101(a)(43)(B).    As a result, Reyes Alvarado argues that a violation of
§ 481.112 is categorically not an “aggravated felony,” and the BIA committed
error in dismissing her appeal on that basis.
      Reyes Alvarado also argues that the BIA erred by relying on United
States v. Ford, 509 F.3d 714 (5th Cir. 2007), in dismissing her appeal. She
claims that Ford is inapposite because it only addressed whether a violation of
§ 481.112 constituted a “controlled substance offense” under the U.S.
Sentencing Guidelines and not a felony under the CSA. Reyes argues that the
Guideline’s definition of “controlled substance offense,” see U.S.S.G. § 4B1.2(b),
differs from § 481.112 in that the controlled substances covered under
§ 4B1.2(b) and § 481.112, respectively, are not exactly the same and, therefore,
that § 481.112 is both broader and narrower than § 4B1.2(b).
      “The BIA’s determination that an alien is ineligible for discretionary
relief in the form of cancellation of removal is a question of law that [this court]
review[s] de novo, deferring to the BIA’s interpretation of the statutes and
regulations it administers.” Vasquez-Martinez v. Holder, 564 F.3d 712, 715
(5th Cir. 2009) (citation omitted). An aggravated felony conviction makes an
alien ineligible for cancellation of removal. § 1229b(a)(3). A conviction for



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“illicit trafficking in a controlled substance (as defined in section 802 of Title
21), including a drug trafficking crime (as defined in section 924(c) of Title 18)”
qualifies as an aggravated felony for immigration purposes. § 1101(a)(43)(B).
Reyes Alvarado has the burden of establishing that she is eligible for
cancellation of removal. See Le v. Lynch, 819 F.3d 98, 105 (5th Cir. 2016)
(citing § 1229a(c)(4)(A)); 8 C.F.R. § 1240.8(d).
      As a preliminary matter, we hold that Reyes Alvarado has not properly
exhausted her claim that the BIA’s reliance on Ford in dismissing her appeal
was error. Despite the fact that both the immigration judge and the BIA relied
upon Ford in their decisions, Reyes Alvarado never raised her arguments
concerning Ford—and the distinction between the controlled substances
covered by § 481.112 and § 4B1.2(b)—with the BIA, either in her appeal brief
or through a motion for reconsideration. By failing to do so, she did not exhaust
her administrative remedies as to this claim, and such a failure constitutes a
jurisdictional bar to our review. See Omari v. Holder, 562 F.3d 314, 319 (5th
Cir. 2009); 8 U.S.C. § 1252(d)(1). Accordingly, Reyes Alvarado’s petition will
be dismissed, in part, on this ground.
      As concerns Reyes Alvarado’s divisibility argument, this court has
already conclusively found that § 481.112 is divisible. United States v. Teran-
Salas, 767 F.3d 453, 459 (5th Cir. 2014) (“Because § 481.112(a) criminalizes
discrete acts—manufacturing, delivering, and possessing with intent to
deliver—it is divisible.”). Reyes Alvarado’s arguments to the contrary are
unavailing.   See United States v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993)
(holding that one panel of this court cannot overrule a prior panel’s decision in
the absence of an intervening contrary or superseding decision by this court
sitting en banc or by the Supreme Court). Because § 481.112 is divisible, we
can implement the modified categorical approach, and look to the documents



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                                  No. 15-60693

relevant to Reyes Alvarado’s conviction to determine whether it constitutes an
aggravated felony. See Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005).
      Reyes Alvarado’s conviction records reveal that she was convicted of the
following offense in violation of § 481.112: “Possession of a Controlled
Substance with Intent to Deliver, Methamphetamine, 4-200 grams.”               In
Vasquez-Martinez, we conclusively held that a conviction under § 481.112 for
“possession with intent to deliver” was a “drug trafficking crime” and an
“aggravated felony” for purposes of § 1101(a)(43)(B).       564 F.3d at 718-19.
Because it is clear that Reyes Alvarado was convicted of possession with an
intent to deliver under § 481.112—and we are bound by our holding in Vasquez-
Martinez that a conviction under § 481.112 for possession with the intent to
deliver is an aggravated felony for the purposes of § 1101(a)(43)(B)—we hold
that the BIA did not err in concluding that (i) Reyes Alvarado failed to satisfy
her burden of establishing that she had not been convicted of an aggravated
felony and (ii) she was ineligible for cancellation of removal.
      PETITION DISMISSED IN PART AND DENIED IN PART.




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