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

                                                FILED
                                                                    September 17, 2009
                                  No. 08-61064
                                Summary Calendar                   Charles R. Fulbruge III
                                                                           Clerk

OLGA PANGILINAN HATHAWAY,

             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. A44-832-934


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Olga Pangilinan Hathaway appeals an order from the Board of
Immigration Appeals (BIA) denying her applications for: asylum; cancellation of
removal; and withholding of removal. Although the factual background and
statutory framework are a bit complicated, the result in this case (a denial) has
been predetermined by binding Fifth Circuit precedent.
      In 1995, the United States admitted Hathaway – a citizen of the
Philippines – as a permanent resident.          In 2004 in Taylor County, Texas,

      *
         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not be published and is not precedent except under the limited circumstances set forth in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.
                                          No. 08-61064

Hathaway pleaded guilt to possession of a small amount of methamphetamine.1
The Forty-Second Judicial District Court sentenced her to fifteen months in jail
– but instead placed her on community supervision for three years. Then, in
2005, Hathaway was again caught with methamphetamine; she pleaded guilty
in Eastland County, Texas to possession of a controlled substance.2 This time,
the Ninety-First Judicial District Court sentenced her to seven years
confinement – but suspended and probated that sentence for ten years. The
Texas courts did not specifically sentence her as a recidivist offender under state
law.
       In 2007, the Department of Homeland Security (DHS) – apparently
unaware of her 2004 conviction – notified Hathaway that her 2005 drug
conviction subjected her to removal under the Immigration and Nationality Act
(INA).3 Unfortunately for Hathaway, the Government subsequently discovered
the 2004 offense, and DHS amended its charge to allege that Hathaway had
been convicted of an aggravated felony: illicit trafficking in a controlled
substance.
       Under the INA, an “aggravated felony” is defined (in part) as a “drug
trafficking crime” – which, in turn, is defined as any felony punishable under the
Controlled Substances Act (CSA).4 The CSA allows the federal government in
some instances to punish – as a felony – recidivist possession of a controlled
substance. Relevant to Hathaway’s particular case: if a defendant commits a




       1
           See TEX . HEALTH & SAFETY CODE § 481.115(b).
       2
           See TEX . HEALTH & SAFETY CODE §§ 481.115(a) & (d).
       3
           See Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i).
       4
           See 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2).

                                                 2
                                         No. 08-61064

possession offense after a prior state-law possession conviction has become final,
the second offense is punishable as a felony under the CSA.5
      In her proceeding before an Immigration Judge, Hathaway sought asylum,
cancellation of removal, and withholding of removal.                  Under normal
circumstances, the Attorney General may cancel the removal of an otherwise
deportable alien; however, he cannot cancel removal of an alien who has been
convicted of an aggravated felony.6 The Immigration Judge noted that – even
though the federal authorities did not in fact prosecute her – Hathaway’s second
methamphetamine offense was “punishable” as a felony under the CSA. That
is, a federal court hypothetically could have punished Hathaway as a recidivist
possessory felon under the CSA, making her offense an aggravated felony and
precluding her from eligibility for cancellation of removal.
      The Immigration Judge also pretermitted Hathaway’s applications for
asylum and for withholding of removal. An alien is ineligible for either of these
forms of relief if she has committed a particularly serious crime.7                 For
withholding of removal, a particularly serious crime is statutorily defined as a
conviction of an “aggravated felony . . . for which the alien has been sentenced
to an aggregated term of imprisonment of at least 5 years.” 8 In the asylum
context, any aggravated felony – regardless of the length of sentence – counts as
a particularly serious crime.9 Because the Ninety-First Judicial District Court
had sentenced Hathaway to seven years confinement for the second drug offense



      5
       21 U.S.C. § 844(a); see also 18 U.S.C. § 3559(a) (defining a felony as an offense
punishable by more than one year in prison).
      6
          See 8 U.S.C. § 1229b.
      7
       See 8 U.S.C. § 1158(b)(2)(A)(ii) (asylum context); 8 U.S.C. § 1231(b)(3)(B)(ii)
(withholding of removal context).
      8
          8 U.S.C. § 1231(b)(3)(B).
      9
          8 U.S.C. § 1158(b)(2)(B)(i).

                                              3
                                            No. 08-61064

(an aggravated felony), the Immigration Judge determined that she was
precluded from seeking asylum or withholding of removal.
       The Board of Immigration Appeals (BIA) affirmed the Immigration Judge’s
findings, and Hathaway now looks to us for relief.                 She makes two main
arguments.
       First, Hathaway contends that she did not commit an aggravated felony.
She claims that even though federal authorities hypothetically may have been
able to punish her as a recidivist felon under the CSA, no court (with attendant
procedural protections) actually determined her to be a recidivist. Hathaway,
it would seem, would require the second possession offense to be prosecuted
under a state recidivism law that corresponds to the CSA’s federal recidivism
law. But, her reasoning was already doomed at the time she filed her appeal,10
and this court has recently issued yet another binding opinion – Carachuri-
Rosendo v. Holder 11 – directly rejecting the exact same argument.
       Second, Hathaway circularly contends that she was not convicted of a
particularly serious crime because her offense was not particularly serious. On
appeal, Hathaway has provided us with no legal support 12 for disregarding the
plain language of the statute – which states that a particularly serious crime
includes an aggravated felony with a sentence of at least five years. Although
her rationale is far from clear, perhaps Hathaway means to argue – as she did
before the BIA — that because the criminal court suspended the seven-year
sentence for her second offense, she was not actually sentenced to a term of at
least five years. In other words, Hathaway would substitute “time served” for


       10
         See United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005); United
States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008).
       11
            570 F.3d 263 (5th Cir. 2009).
       12
        The one administrative matter cited by Hathaway – In re Y-L-, 23 I. & N. Dec. 270
(A.G. 2002) – is inapt, because that case did not involve aliens who had been sentenced to
confinement of five or more years.

                                                 4
                                         No. 08-61064

“time sentenced.” But the INA’s plain language directly contradicts this logic,
specifying: “Any reference to a term of imprisonment or a sentence with respect
to an offense is deemed to include the period of incarceration or confinement
ordered by a court of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in part.” 13 Moreover, our
case law independently forecloses the argument.14 Although Hathaway presents
an emotionally compelling case, she has offered utterly no relevant legal reason
for classifying her crime as anything but particularly serious.
       For the foregoing reasons, Hathaway’s petition for review is DENIED.




       13
            8 U.S.C. § 1101(a)(48)(B).
       14
        See United States v. Yanez-Huerta, 207 F.3d 746, 749 (5th Cir. 2000) (explaining – in
the sentencing context – that the plain language of 8 U.S.C. § 1101(a)(48)(B) applies to
aggravated felonies defined in 8 U.S.C. § 1101(a)(43)(B)); Carachuri-Rosendo, 570 F.3d at 568
(holding that 8 U.S.C. § 1101(a)(43)(B) is analyzed the same way “in both sentencing and
immigration cases”).

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