                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit              November 2, 2004

                                                       Charles R. Fulbruge III
                           No. 04-60440                        Clerk


                    SAMUEL IGNACIO LOPEZ-VELOZ

                              Petitioner,


                                v.

          JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL
                              Respondent



                 Petition For Review of an Order
               of the Board of Immigration Appeals
                          (A90 916 144)



Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Samuel Ignacio Lopez-Veloz petitions for direct review of a

decision of the Board of Immigration Appeals (BIA), affirming the

immigration judge’s denial of a waiver of inadmissibility under

former section 212(c) of the Immigration and Nationality Act (INA),

8 U.S.C. § 1182(c) (repealed 1996).       Lopez-Veloz also seeks a

continuation of the temporary stay of deportation granted by this

court on June 14, 2004.   In response, the government has filed a


     *
      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this opinion should not be published and is not precedent except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.

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motion to dismiss, arguing that we lack jurisdiction to review

Lopez-Veloz’s petition, because 8 U.S.C. § 1252(a)(2)(C) explicitly

prohibits our direct review of orders for the removal of the class

of criminal aliens of which Lopez-Veloz is a member.

     We agree with the government that our ability to consider

Lopez-Veloz’s petition for direct review of the BIA’s decision in

this case is forbidden by 8 U.S.C. § 1252(a)(2)(C).                Indeed, §

1252(a)(2)(C) precludes us from exercising “jurisdiction to review

any final order of removal against an alien who is removable by

reason of having committed” certain enumerated criminal offenses,

including     those   offenses   involving    violations   of   state     laws

relating to controlled substances.           8 U.S.C. § 1252(a)(2)(C); 8

U.S.C.   §    1227(a)(2)(B)(i).       Although   the   stripping     of    our

“jurisdiction to review” by § 1252(a)(2)(C) does not affect our

habeas corpus jurisdiction, it clearly deprives us of jurisdiction

to directly review a BIA decision.          See INS v. St. Cyr, 533 U.S.

289, 312-315 (2001).

     Specifically, in St. Cyr, the Court observed that “it is the

scope of inquiry on habeas corpus that differentiates habeas review

from judicial review.” 533 U.S. at 312 (quoting Heikkila v. Barber,

345 U.S. 229, 236(1953)). Because the pre-IIRIRA statutory regime

allowed for direct review of immigration decisions, which gave

courts the “broad authority to grant declaratory and injunctive

relief   in   immigration   cases,”   the    Court   interpreted    IIRIRA’s



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jurisdiction stripping provisions, such as § 1252(a)(2)(C), as a

congressional withdrawal of the courts’ direct review jurisdiction.

Id. at 309. Accordingly, the Supreme Court concluded that the sole

form of review available to aliens protesting the legality of their

deportation post-IIRIRA is in habeas. Id.

     Nevertheless, despite § 1252(a)(2)(C)’ s limitation on this

court’s jurisdiction to consider a petition for direct review, we

have previously concluded that we “retain the jurisdiction to

review jurisdictional facts.” Balogun v. Ashcroft, 270 F.3d 274,

278 (5th Cir. 2001).   Thus, our direct review of the BIA decision

in this instance is only to ascertain whether Lopez-Veloz is: (1)

an alien; (2) who is deportable; (3) based on a conviction for a

violation of state law relating to controlled substances.      See

Balogun at 278.

     It is undisputed that Lopez-Veloz is deportable under §

1227(a)(2)(B) as an “alien who at any time after admission has been

convicted of a violation of (or a conspiracy or attempt to violate)

any law of any State. . .relating to a controlled substance.” 8

U.S.C. § 1227(a)(2)(B)(i).   Therefore, § 1252(a)(2)(C) precludes

this court from directly reviewing the BIA’s decision.

     Accordingly, as we do not have jurisdiction to directly review

Lopez-Veloz’s petition, the Government’s motion to dismiss his

petition for lack of jurisdiction is granted, the temporary stay of

deportation is withdrawn, and all other relief prayed for is



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denied.

PETITION DISMISSED; TEMPORARY STAY WITHDRAWN.




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