Serrano-Fonseca v. Mukasey, No. 07-60584 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-60584 Summary Calendar July 15, 2008 Charles R. Fulbruge III Clerk JOSE LUIS SERRANO-FONSECA Petitioner v. MICHAEL B MUKASEY, U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A45 181 375 Before JOLLY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* Jose Luis Serrano-Fonseca petitions for review of an order by the Board of Immigration Appeals (BIA), affirming the order of removal by the Immigration Judge (IJ). He presents two issues. First, he contends: pursuant to Lopez v. Gonzales, 127 S. Ct. 625 (2006), the IJ erred when he determined Serrano was convicted of an aggravated felony and therefore was not eligible for cancellation of removal. Under 8 U.S.C. § * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60584 1252(a)(2)(C), federal courts lack jurisdiction to review a final order of removal against an alien who is removable because he was convicted of an aggravated felony. However, such courts have jurisdiction to consider whether Serrano s prior offense qualifies as an aggravated felony. See Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005). The definition of an aggravated felony includes illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of title 18). 8 U.S.C. § 1101(a)(43)(B). A drug trafficking crime includes any felony punishable under the Controlled Substances Act. 18 U.S.C. § 924(c)(2). A state offense constitutes a felony punishable under the Controlled Substances Act only if it involves conduct punishable as a felony under federal law. Lopez, 127 S. Ct. at 629-33. Serrano s delivery of marijuana would subject him to a potential maximum federal sentence of five years in prison. See 21 U.S.C. § 841(b)(1)(D). Because his offense was punishable by imprisonment for more than one year, it qualifies as an aggravated felony under federal law. See 21 U.S.C. § 802(44). For his other issue, Serrano contends he was denied due process because the IJ failed to hold a merits hearing before issuing an order of removal. To the extent that he is asserting he was entitled to a merits hearing to present evidence about the drug quantity involved in his offense, he waived the claim because he never requested a hearing on this ground. See Zhang v. Gonzales, 432 F.3d 339, 346-47 (5th Cir. 2005). Moreover, Serrano s contentions about the drug quantity would not have affected the finding that his prior conviction constituted an aggravated felony. To the extent that Serrano is asserting he was entitled to a hearing to present evidence relating to his request for cancellation of removal, he has no due process right to a hearing for discretionary relief. See Gutierrez-Morales v. Homan, 461 F.3d 605, 610 (5th Cir. 2006). DENIED. 2
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