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

                                                FILED
                                                                   July 28, 2009
                                 No. 08-60927
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

DONALD ANTHONY SINGH, also known as Donald A Singh,

                                            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. A072 423 848


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Donald Anthony Singh, a native and citizen of Trinidad and Tobago,
became a lawful permanent resident of the United States through adjustment
of status in 1993. Singh was convicted in February 2008 of delivery by actual
transfer of less than one gram of cocaine, in violation of T EXAS H EALTH & S AFETY
C ODE § 481.112, and he was sentenced to six months in county jail.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-60927

      In April 2008, the Department of Homeland Security (DHS) charged Singh
with being deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i) as an
alien convicted of, respectively, an aggravated felony and a controlled substance
violation. Singh admitted the factual allegations of the DHS, but the IJ ruled
that Singh was not eligible for cancellation of removal due to his prior conviction
of an aggravated felony related to a controlled substance. The IJ ordered Singh
removed to Trinidad and Tobago.
      Singh appealed to the BIA, arguing that the IJ violated his due process
rights and that, because his conviction for delivery by actual transfer of less than
one gram of cocaine was not an aggravated felony, the IJ erred in refusing to
allow him to apply for cancellation of removal. The BIA rejected these claims
and dismissed the appeal.
      We have jurisdiction over Singh’s legal and constitutional claims pursuant
to 8 U.S.C. § 1252(a)(2)(D). We generally review only the BIA’s decision, not that
of the IJ, except to the extent that the IJ’s decision influences the BIA. See
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).          We review the BIA’s
conclusions of law de novo, according deference to the BIA’s interpretations of
ambiguous provisions of the Immigration and Nationality Act (INA) in
accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984). Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
      Singh argues that, because his cocaine delivery conviction under § 481.112
does not constitute an “aggravated felony” under the INA in light of United
States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.), cert. denied, 127 S. Ct. 3031
(2007), he is not deportable under § 1227(a)(2)(A)(iii) and not ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a)(3). The Texas statute of
Singh’s prior conviction provides that “a person commits an offense if the person
knowingly manufactures, delivers, or possesses with intent to deliver a
controlled substance” such as cocaine.       § 481.112(a); see also § 418.112(b)
(punishing such an offense as a “state jail felony” if the aggregate drug quantity

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is less than one gram). In addition, T EXAS H EALTH & S AFETY C ODE § 481.002
defines “deliver” in part, as used in § 481.112, to mean “to transfer, actually or
constructively, to another a controlled substance, counterfeit substance, or drug
paraphernalia.” Singh’s judgment of conviction states that he was convicted of
“delivery by actual transfer of cocaine less than 1 gram.”
      Delivery of cocaine by actual transfer is punishable under the CSA as a
felony. The CSA states that “it shall be unlawful for any person knowingly or
intentionally to . . . distribute . . . a controlled substance,” 21 U.S.C. § 841(a)(1),
defines “distribute” as meaning to “deliver,” which in turn is defined as “the
actual, constructive, or attempted transfer of a controlled substance,” 21 U.S.C.
§ 802(8) & (11), and punishes distribution of cocaine in any amount by a term of
imprisonment of not more than 20 years. See 21 U.S.C. § 812(c) (listing cocaine
under Schedule II); § 841(b)(1)(C) (penalty provision). Because the judgment in
Singh’s prior case makes clear that Singh did not simply “offer to sell” the
cocaine but delivered it by actually transferring it to another, and because that
conduct is set forth as a distinct means of committing the offense in the statute
of conviction, Singh’s crime falls within the meaning of “aggravated felony” in
the INA. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006).1
      Singh argues that the BIA erred in treating his prior state drug conviction
as an aggravated felony because the BIA relied on recidivist statutory
provisions, but the argument is misplaced because the BIA did not in fact apply
any recidivist provision under state or federal law in reaching its decision.
      Singh also contends that the IJ and the BIA violated his due process
rights. Due process is not implicated where the claimant has no liberty interest
at stake in the agency’s action. United States v. Lopez-Ortiz, 313 F.3d 225, 231


      1
        Singh has never argued that his judgment of conviction does not qualify
as a Shepard v. United States, 544 U.S. 13, 16 (2005) document on the basis that
it does not reflect a “factual finding by the trial judge to which the defendant
assented.” Therefore, we do not reach that question. See § 1252(d)(1).

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(5th Cir. 2002). Because there is no constitutionally protected liberty interest
in the discretionary relief of cancellation of removal or in eligibility for that
relief, Singh’s due process claim is without merit.     See Manzano-Garcia v.
Gonzales, 413 F.3d 462, 471 (5th Cir. 2005).
      PETITION DENIED.




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