     Case: 08-60980         Document: 00511044941       Page: 1   Date Filed: 03/08/2010




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

                                                  FILED
                                                                            March 8, 2010
                                          No. 08-60980
                                                                       Charles R. Fulbruge III
                                                                               Clerk
ARTURO HERNANDEZ-RODRIGUEZ,

                                                    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. A42 324 896


Before DAVIS, WIENER and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Arturo Hernandez-Rodriguez (Hernandez), a citizen and native of Mexico,
petitions this court for review of the Board of Immigration Appeals’ (BIA) order
affirming the Immigration Judge’s (IJ) final order of removal and the IJ’s denial
of his application for cancellation of removal. Hernandez argues that his prior
Texas drug conviction for possession with intent to deliver methamphetamine 1
is not an aggravated felony punishable as a felony under the Controlled



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
        T   EX .   HEALTH & SAFETY CODE ANN . § 481.112.a.
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                                 No. 08-60980

Substance Act (CSA). We resolved this issue in Vasquez-Martinez v. Holder, 564
F.3d 712 (5th Cir. 2009), where we held that this Texas offense is
indistinguishable from the CSA offense of possession with intent to distribute.
We therefore deny the petition for review.
                                        I.
      This court generally lacks jurisdiction to review a final order of removal
against an alien who is removable based on the commission of a criminal offense
covered in 8 U.S.C. § 1227(a)(2)(B). 8 U.S.C. § 1252(a)(2)(C); Marquez-Marquez
v. Gonzales, 455 F.3d 548, 560 (5th Cir. 2006). However, § 1252(a)(2)(C) does not
preclude review of constitutional claims or questions of law. § 1252(a)(2)(D);
Marquez-Marquez, 455 F.3d at 560-61.          Whether a statute of conviction
constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is a question
of law that this court retains jurisdiction to consider. Arce-Vences v. Mukasey,
512 F.3d 167, 170-71 (5th Cir. 2007).         Likewise, while this court lacks
jurisdiction pursuant to § 1252(a)(2)(B) to review a discretionary decision to deny
cancellation of removal, this court has jurisdiction to review the determination
that an alien is statutorily ineligible for cancellation of removal due to an
aggravated felony conviction. Martinez v. Mukasey, 508 F.3d 255, 257-58 (5th
Cir. 2007).
      When the BIA summarily affirms the IJ’s decision without opinion, as
occurred in this case, this court reviews the IJ's decision. Majd v. Gonzales, 446
F.3d 590, 594 (5th Cir. 2006). This court reviews the legal conclusions of the BIA
and the IJ de novo. Id.
                                        II.
      Aliens convicted of aggravated felonies are ineligible for relief in the form
of discretionary cancellation of removal. See 8 U.S.C. §§ 1229b(a)(3). A prior
state offense qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)
if it “either involve[s] some sort of commercial dealing or [is] punishable as a



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                                 No. 08-60980

federal felony under the Controlled Substances Act.” Arce-Vences v. Mukasey,
512 F.3d 167, 171 (5th Cir. 2007).
      When determining whether an offense qualifies as an aggravated felony
under the INA, this court employs a categorical approach in which it “look[s] at
the statute under which the alien was convicted rather than at the particular
underlying facts.” Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005). “If the
statute of conviction defines multiple offenses, at least one of which does not
describe an aggravated felony,” this court applies the modified categorical
approach to determine whether the conviction is an aggravated felony.
Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006) (internal quotation
and citation omitted). The modified categorical approach allows for examination
of the record of conviction to determine under which subsection of a divisible
statute the individual was convicted. Omari, 419 F.3d at 308. For guilty plea
convictions, examination of the record of conviction “may include consideration
of the ‘charging document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the defendant
assented.’” Id. (internal quotation and citation omitted).       United States v.
Gonzales, 484 F.3d 712, 714 (5th Cir. 2007), and United States v. Morales-
Martinez, 496 F.3d 356, 358 (5th Cir. 2007),
      S ECTION § 481.112(a) provides that “a person commits an offense if the
person knowingly manufactures, delivers, or possesses with intent to deliver a
controlled substance.”    In the context of that statute, “‘[d]eliver’ means to
transfer, actually or constructively, to another a controlled substance . . . [and]
includes offering to sell a controlled substance.” T EX. H EALTH & S AFETY C ODE
A NN. § 481.002(8). Thus, the statute under which Hernandez was convicted may
be violated by conduct that may not constitute drug trafficking within the
meaning of the immigration laws. See United States v. Gonzales, 484 F.3d 712,
714 (5th Cir. 2007), and United States v. Morales-Martinez, 496 F.3d 356, 358



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(5th Cir. 2007)(both of which involved convictions of delivery of a controlled
substance).
       However, in Vasquez-Martinez v. Holder, 564 F.3d 712, 714 (5th Cir. 2009),
the first published immigration case to address this issue, this court determined
that Vasquez-Martinez’s offense of possession with intent to deliver cocaine
under § 481.112(a) was indistinguishable from the offense of possession with
intent to distribute under the CSA and thus, that he was ineligible for
cancellation of removal under § 1229b(a)(3). Vasquez-Martinez controls the
resolution of the issue in this appeal.2
       Because Hernandez’s prior conviction was an aggravated felony drug
trafficking offense analogous to a felony violation of the CSA, Hernandez was
ineligible for cancellation of removal under both § 1227(a)(2)(A)(iii), and
(a)(2)(B)(i).
       Hernandez’s petition for review is DENIED.




       2
        In U.S. v. Ford, 509 F.3d 714 (5th Cir. 2007), we reached the same result in a closely
related question and held that a conviction under the same Texas statute is a controlled
substance offense for purposes of sentencing enchancement under U.S.S.G § 2K2.1(a)(4)(A).

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