                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     February 8, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-51142
                            Summary Calendar
                        _______________________


                        LUIS BETANCOURT-RAMIREZ,

                                                    Petitioner-Appellant,

                                  versus

           ALBERTO GONZALES, U.S. ATTORNEY GENERAL, ET AL.,

                                                  Respondents-Appellees.



             Appeal from the United States District Court
                  for the Western District of Texas,
                           El Paso Division
                            No. 3:04-CV-342


Before JONES, Chief Judge, and DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

            Luis Betancourt-Ramirez brings this appeal, challenging

the determination of the Board of Immigration Appeals (“BIA”) that

his 1997 state conviction for possession of cocaine constituted an

aggravated felony and made him ineligible for cancellation of

removal.    Due to the passage of the REAL ID Act while this appeal

was pending, Betancourt-Ramirez’s petition for a writ of habeas

corpus is converted into a timely filed petition for review of the



     *
            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opinion should not be published and is not precedent except under the limited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.
BIA    decision.         Because    we    conclude     that   Betancourt-Ramirez’s

conviction for possession of a controlled substance constituted an

aggravated felony, his petition is DENIED.

                                        BACKGROUND

              Luis    Betancourt-Ramirez,          a   citizen     and     national    of

Mexico, entered the United States as an immigrant in 1970.                             On

May 21, 1997, in Texas state court, Betancourt-Ramirez pleaded

guilty to the possession of a controlled substance, a felony.                          On

June    19,   2003,      Betancourt-Ramirez        was      convicted      of   criminal

negligent     homicide      in   Texas     state   court.         The    Department    of

Homeland Security initiated removal proceedings against Betancourt-

Ramirez on July 22, 2003, and an immigration judge ultimately

determined that he was removable as an alien convicted of an

aggravated     felony      under    8    U.S.C.    §   1227(a)(2)(A)(iii).            The

immigration      judge      found       Betancourt-Ramirez’s            conviction    for

possession     of    a   controlled       substance     —   but    not    his   criminal

negligent homicide conviction — to be an aggravated felony.

              Betancourt-Ramirez appealed to the BIA, which affirmed

the immigration judge and dismissed his case.                     He then petitioned

the district court for habeas relief.                  The district court, citing

8 U.S.C. § 1252(a)(2)(C), concluded that it lacked jurisdiction

over Betancourt-Ramirez’s petition, and therefore denied relief.

Betancourt-Ramirez again appealed, and this court may review the

decision of the district court pursuant to 28 U.S.C. § 1291.


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                               DISCUSSION

          Betancourt-Ramirez        originally   sought    habeas     relief

through the courts.     However, the REAL ID Act, PUB. L. NO. 109-13,

119 STAT. 231 (MAY 11, 2005)         divested    the   federal   courts   of

jurisdiction to hear habeas petitions attacking removal orders,

effective as of the Act’s passage.        This court recently held in

Rosales v. Bureau of Immigrations & Customs Enforcement, 426 F.3d

733 (5th Cir. 2005), that habeas petitions on appeal as of May 11,

2005, such as Betancourt-Ramirez’s, “are properly converted into

petitions for review.” Id. at 736. Following Rosales, Betancourt-

Ramirez’s petition for habeas relief is thus converted into a

petition for review of the underlying BIA decision, and because his

petition addresses “constitutional claims or questions of law,”

this court has jurisdiction under 8 U.S.C. § 1252(b)(2)(D) to reach

the merits of his challenge.        Id.

          On a petition for review of a BIA decision, we review the

BIA’s rulings of law de novo.        Lopez-Gomez v. Ashcroft, 263 F.3d

442, 444 (5th Cir. 2001).    We review the BIA’s findings of fact for

substantial evidence.    Tesfamichael v. Gonzales, 411 F.3d 169, 175

(5th Cir. 2005).

          The   BIA   held   that    Betancourt-Ramirez    was   an   alien

convicted of an aggravated felony within the meaning of 8 U.S.C.

§ 1101(a)(43)(B), and was therefore ineligible for cancellation of

removal. With regard to drug-related crimes, it is established law



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in this circuit that if a “defendant’s prior conviction was a

felony under applicable state law and was punishable under the

[federal]     Controlled    Substances      Act,”   then   such    a   conviction

qualifies     as   an    aggravated        felony    for    the    purposes      of

§ 1101(a)(43)(B). United States v. Hernandez-Avalos, 251 F.3d 505,

508 (5th Cir. 2001); see also United States v. Hinojosa-Lopez,

130 F.3d 691, 693-94 (5th Cir. 1997) (state felony punishable under

Controlled     Substances     Act   constitutes       aggravated       felony   for

purposes of Federal Sentencing Guidelines).                There is no dispute

here that Betancourt-Ramirez’s 1997 conviction was for a felony in

the state of Texas, or that possession of cocaine is punishable

under the Controlled Substances Act.                 Under Hernandez-Avalos,

Betancourt-Ramirez committed an aggravated felony for the purposes

of § 1101(a)(43)(B), and he was therefore ineligible for cancella-

tion of removal.

            However, Betancourt-Ramirez notes that in 1997, at the

time he pleaded guilty to possession of a controlled substance, he

would have been eligible to apply for cancellation of removal under

Immigration and Nationality Act § 240A.             He therefore argues that

the   BIA’s     retroactive     application         of   Hernandez-Avalos        is

unconstitutional.       This argument fails, however, as “it is well

settled that Congress has the authority to make past criminal

activity a new ground for deportation.”              United States v. Madriz-

Alvarado, 383 F.3d 321, 334 (5th Cir. 2004)(quoting Ignacio v. INS,

955 F.2d 295, 298 (5th Cir. 1992)).             Madriz-Alvarado guides our

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analysis here; in that case, an alien challenged the application of

8 U.S.C. § 1101(a)(48)(A), which defined the term “conviction,” as

being unconstitutionally retroactive. The alien argued that at the

time of his deferred adjudication, BIA precedent did not make such

deferred adjudication a “conviction.” Madriz-Alvarado, 383 F.3d at

334. The Madriz-Alvarado court denied habeas, however, noting that

Congress had the broad authority to define the scope of immigration

law, and could render an alien deportable “for past antisocial

conduct that not only did not result in a conviction but was not

even criminal when engaged in.”           Id. at 335.    Betancourt-Ramirez

makes   a   nearly    identical    argument    here,    claiming   that     the

definition of “aggravated felony” under 8 U.S.C. § 1101(a) as

interpreted   by     Hinojosa-Lopez   and    Hernandez-Avalos,     cannot    be

retroactively applied to his 1997 conviction.              As with Madriz-

Alvarado, Betancourt-Ramirez’s constitutional challenge must be

rejected.

                                  CONCLUSION

            Betancourt-Ramirez’s 1997 conviction for possession of

cocaine constitutes an aggravated felony for the purposes of

8 U.S.C. § 1101(a)(43)(B).        As a result, he is ineligible to apply

for cancellation of removal, and his petition for review is DENIED.




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