                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 08-1649

                          DENNIS A. MCCARTHY,

                                Petitioner,

                                      v.

                MICHAEL B. MUKASEY, ATTORNEY GENERAL,

                                Respondent.


              ON PETITION FOR REVIEW OF AN ORDER OF THE
                     BOARD OF IMMIGRATION APPEALS


                                   Before

                          Lynch, Chief Judge,
                Torruella and Howard, Circuit Judges.


     Dennis A. McCarthy on brief pro se.
     Corey L. Farrell, Office of Immigration Litigation, Gregory G.
Katsas, Assistant Attorney General, and Greg D. Mack, Senior
Litigation Counsel, on brief for respondent.



                             January 9, 2009
             Per Curiam.    Pro se petitioner Dennis A. McCarthy seeks

review of a Board of Immigration Appeals (BIA) decision upholding

a removal order issued by an immigration judge.               McCarthy was

ordered removed to Jamaica on the ground that he was an alien

subject to removal because of his conviction for a federal crime

that qualified as an aggravated felony and a controlled substance

offense.1     See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for the

removal of aliens "convicted of an aggravated felony"); id. (B)(i)

(same for aliens convicted of, inter alia, federal controlled

substance     violations    "other   than   a   single   offense   involving

possession for one's own use of 30 grams or less of marijuana").

             Although we lack jurisdiction to review removal orders

against criminal aliens, see 8 U.S.C. § 1252(a)(2)(C), we have

limited     jurisdiction   to   consider    "constitutional   questions   or

questions of law."         Id. § 1252(a)(2)(D).      On appeal, McCarthy

raises such questions, and we review them de novo. See Abou-Haidar

v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006) (so stating with

respect to the question whether an alien has been naturalized);

accord Julce v. Mukasey, 530 F.3d 30, 33 n.3 (1st Cir. 2008)

(whether a conviction constitutes an aggravated felony); Urena-

Ramirez v. Ashcroft, 341 F.3d 51, 53 (1st Cir. 2003) (whether a


     1
      On November 4, 2008, the government filed a notice of intent
to remove McCarthy "on or after November 20, 2008."      Given the
collateral consequences of being removed as an aggravated felon,
McCarthy's removal would not moot his petition for review. Leitao
v. Reno, 311 F.3d 453, 456 (1st Cir. 2002).

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conviction constitutes a controlled substance offense);             González-

Mesías v. Mukasey, 529 F.3d 62, 64 (1st Cir. 2008) (constitutional

questions).      Finding no merit in any of McCarthy's arguments, we

deny the petition in part and otherwise dismiss it for lack of

jurisdiction for the following reasons.

            1. McCarthy's strongest point in support of his argument

that he is a United States national--and not an alien subject to

removal--is that he is a lawful permanent resident who swore

allegiance       to   this   country    and   filed   an   application       for

citizenship. But McCarthy's failure to complete the naturalization

process dooms his argument.        See Abou-Haidar, supra, 437 F.3d at

207-08.    We have rejected the reasoning of the Fourth Circuit case

that McCarthy relies on, id. at 207 n.4 (disagreeing with United

States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996)), and the Fourth

Circuit itself has concluded that Morin is no longer authoritative.

See Fernandez v. Keisler, 502 F.3d 337, 347-48 (4th Cir. 2007)

(majority opinion), cert. denied, 129 S. Ct. 65 (2008).

            2.    McCarthy's conviction for possessing with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1)--for

which he received a 121-month prison term, as his written criminal

judgment     shows--satisfied     the    prerequisites     in   8   U.S.C.     §

1101(a)(43)(B), and so constitutes an aggravated felony.              See id.

(defining an "aggravated felony" to include "a drug trafficking

crime (as defined in section 924(c) of Title 18)"); 18 U.S.C. §


                                       -3-
924(c) (defining "drug trafficking crime" to mean "any felony

punishable under the Controlled Substances Act (21 U.S.C. § 801 et

seq.)").   McCarthy's arguments to the contrary are foreclosed by

our precedent.        See Conteh v. Gonzales, 461 F.3d 45, 59, 62 (1st

Cir.   2006)    (majority     opinion)       (concluding   that   in     removal

proceedings the government need only show that an alien has been

convicted of a crime involving "every element" of the relevant §

1101(a)(43) offense and may rely on the conviction records to meet

its burden of proof), cert. denied, 127 S. Ct. 3003 (2007); Julce,

supra, 530 F.3d at 35-36 (concluding that an alien in removal

proceedings     has     the   burden   of     showing   that   the     marijuana

misdemeanor described in 21 U.S.C. § 841(b)(4) applies; and that if

he fails to meet his burden, then a § 841(a)(1) conviction is

deemed "punishable as a felony" under § 841(b)(1)(D)).

           3.   The government bears the burden of proving that the

statutory controlled substance exception for "a single offense

involving possession for one's own use of 30 grams or less of

marijuana" does not apply. Medina v. Ashcroft, 393 F.3d 1063, 1065

n. 5 (9th Cir. 2005) (citing Sandoval v. INS, 240 F.3d 577, 581

(7th Cir. 2001)).       Contrary to McCarthy's contention, it satisfied

that burden by submitting McCarthy's conviction records documenting

his 121-month sentence.        His sentence would have been capped at 60

months if his offense had involved "30 grams or less" of marijuana.




                                       -4-
See § 841(b)(1)(D) (providing for a statutory maximum of 5 years

for offenses involving "less than 50 kilograms" of marijuana).

           4.   For    present   purposes,   we    assume   that   McCarthy

properly   exhausted    his   constitutional      and   international   law

arguments opposing his removal on the ground that it would deny him

his right to "familial integrity."           See Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 144 (1st Cir. 2007) (indicating that this

court has sometimes bypassed problematical jurisdictional questions

in immigration cases where "precedent clearly adumbrates the result

on the merits").       A recent decision by this court shows that

McCarthy cannot prevail on his claims.             See Payne-Barahona v.

Gonzales, 474 F.3d 1, 2-4 (1st Cir. 2007) (concluding that an

"otherwise valid deportation" does not violate constitutional due

process, that the international conventions at issue here do not

have "the force of domestic law," and that, in any event, their

conflicting provisions would give way to the "clear intent of

Congress" found in the immigration statute's removal provisions).

           The petition for review is denied in part and otherwise

dismissed for lack of jurisdiction.




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