FILED

United States Court of Appeals

Tenth Circuit

June 2, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSE LUIS PEREZ-HERNANDEZ,

a/k/a Jose L. Perez-Hernandez,

a/k/a Jose Luis Perez,

a/k/a Jose Hernandez,

Petitioner,

v.

ERIC H. HOLDER, JR.,

*

United States Attorney General,

Respondent.

No. 08-9567

(Petition for Review)

ORDER AND JUDGMENT

**

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and

GORSUCH, Circuit Judge.

Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for

*

Michael B. Mukasey as the respondent in this appeal.

After examining the briefs and appellate record, this panel has determined

**

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Jose Luis Perez-Hernandez petitions for review of a final order of the

Bureau of Immigration Appeals authorizing his removal from the United States

because he was convicted of an aggravated felony. Mr. Perez-Hernandez

contends that his Utah plea to a charge concerning possession with intent to

distribute methamphetamine doesn’t actually qualify as an aggravated felony. We

disagree and thus have no jurisdiction to review his removal order. Alternatively,

Mr. Perez-Hernandez seeks review of the BIA’s affirmance of an immigration

judge’s denial of his motion to continue his removal proceedings. But here, too,

we do not have jurisdiction to review the Board’s decision.

Mr. Perez-Hernandez, a citizen of Mexico, became a permanent resident

alien of the United States in 1990. Subsequently, he was arrested for possession

of a controlled substance and then for an outstanding warrant relating to a hit and

run incident. But this case began in earnest when Mr. Perez-Hernandez was

arrested in 2007 for another offense, this time after police apparently found a bag

containing drugs and a digital scale at his workplace. Mr. Perez-Hernandez was

charged with possession with the intent to distribute a controlled or counterfeit

substance (methamphetamine), a second degree felony. In due course, he was

allowed to enter a guilty plea to attempted possession with intent to distribute

methamphetamine, a third degree felony. The court held his plea in abeyance for

a year, pending his completion of a drug treatment program.

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When the Department of Homeland Security got wind of all this it charged

Mr. Perez-Hernandez with removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That

statute authorizes the removal of any alien, including a resident alien, “convicted”

of an “aggravated felony.” DHS pointed to Mr. Perez-Hernandez’s 2007 guilty

plea as evidence that he qualified for removal under the statute. Before the

immigration judge, Mr. Perez-Hernandez disputed that his Utah plea constituted

either a “conviction,” or one for an “aggravated felony” within the meaning of the

law. He also sought a continuance of his removal proceedings until after his

wife’s application for naturalization was completed, explaining that he hoped his

wife would soon be sworn in as a United States citizen and that he could

thereafter seek an adjustment of status.

The immigration judge declined to stay the proceedings, found that

Mr. Perez-Hernandez had indeed been convicted of an aggravated felony, and

ordered him removed from the United States. The Board of Immigration Appeals

affirmed, and Mr. Perez-Hernandez now asks us to undo that decision.

Under 8 U.S.C. § 1252(a)(2)(C), however, we lack jurisdiction to review

the merits of a BIA order of removal against an alien on the basis that he or she

has been convicted of an aggravated felony. In such cases, our jurisdiction

extends only so far as to determine our jurisdiction; that is, “[we] have

jurisdiction . . . to determine whether [or not] the jurisdictional bar applies.”

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Ballesteros v. Ashcroft, 452 F.3d 1153, 1156 (10th Cir. 2006) (quotation marks

omitted). We “may therefore decide whether the petitioner is (i) an alien

(ii) deportable (iii) by reason of a criminal offense listed in the statute.” Id.

(quotation marks omitted). If one of the elements is missing, the bar to our

jurisdiction doesn’t apply. But if each element is present, the jurisdictional bar

pertains and we must dismiss the matter.

This case falls into the latter category. Mr. Perez-Hernandez does not

dispute that he is an alien but submits, as he did before the BIA, that

§ 1227(a)(2)(A)(iii) does not apply to him because he wasn’t convicted of an

aggravated offense within the statute’s meaning. In support of this submission,

he offers three arguments. None is persuasive.

First, Mr. Perez-Hernandez contends that he was never actually “convicted”

of anything because he simply entered a plea which was held in abeyance for a

year. But this position is foreclosed by our precedent: a panel of this court has

already held that a guilty plea held in abeyance entered in Utah state court

satisfies the 8 U.S.C. § 1101(a)(48)(A) definition of a “conviction,” United States

v. Zamudio, 314 F.3d 517, 521-22 (10th Cir. 2002), and we are not free to revisit

the decision of another panel.

Second, Mr. Perez-Hernandez contends that, even if a conviction, his plea

wasn’t for an “aggravated felony.” Congress has defined the term “aggravated

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felony” to include “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). In turn, 18 U.S.C. § 924(c)(2) defines drug trafficking crimes

to include “any felony punishable under the Controlled Substances Act (21 U.S.C.

801 et seq.).” The offense to which Mr. Hernandez-Perez pled guilty, Utah Code

Ann. § 58-37-8(1)(a)(iii), is just such a crime. Under 21 U.S.C. § 841(a)(1), the

CSA proscribes the knowing or intentional possession with the intent to distribute

any controlled substance. And this crime is punishable as a felony because

Congress has established a maximum penalty for it of greater than one year in

prison. See id. § 841(b)(1)(B) (setting maximum penalty of five years in prison);

18 U.S.C. § 3559(a) (defining felonies as offenses punishable by more than a year

in prison).

Mr. Hernandez-Perez replies that he possessed a relatively small quantity of

drugs and emphasizes that he was treated by Utah more as a drug abuser than a

drug pusher because the State agreed to rehabilitative drug monitoring rather than

jail time. His crime, he says, is thus less like a felony trafficking offense and

more like a mere possession offense the CSA would treat as a misdemeanor. The

problem is that he was convicted not of mere possession but of a trafficking

offense, involving an effort to distribute drugs, that is punishable under the

federal CSA as a felony and is thus treated as an aggravated felony for purposes

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of the immigration laws. See Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.

2008) (“possession of a controlled substance with intent to sell contains a

trafficking element and is an aggravated felony”).

Third, Mr. Perez-Hernandez argues that his conviction is not an aggravated

felony for purposes of federal immigration law because the Utah statute under

which he was convicted encompasses both felony and misdemeanor offenses.

Because the BIA had to look to “conviction records” to determine whether he was

convicted of a felony or misdemeanor for purposes of Utah law, he asserts, the

government failed to meet its burden of showing that he was convicted of a crime

punishable as a felony under the CSA using a “categorical approach.” Under the

so-called categorical approach we look to statutory definitions rather than “the

particular facts underlying those convictions” to decide if an offense qualifies as

an aggravated felony. Taylor v. United States, 495 U.S. 575, 600 (1990); see

Shepard v. United States, 544 U.S. 13 (2005). Though this approach first arose in

a very different context to answer a very different question, we have adopted it

for the purpose of classifying crimes under the immigration laws. Batrez Gradiz

v. Gonzales, 490 F.3d 1206, 1211 (10th Cir. 2007).

Mr. Perez-Hernandez’s argument on this score fails for two reasons. In the

first place, Mr. Perez-Hernandez fails to recognize that the categorical approach

doesn’t categorically prohibit us from examining the charging document or

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documents reflecting his plea. See Shepard, 544 U.S. at 16; Taylor, 495 U.S. at

602; see also 8 U.S.C. § 1229a(c)(3)(B) (listing documents or records constituting

proof of criminal conviction). The amended information charged

Mr. Perez-Hernandez with knowing and intentional possession of a controlled or

counterfeit substance, namely methamphetamine, with the intent to distribute, a

second degree felony. See Utah Code Ann. § 58-37-8(1)(a)(iii). His record of

conviction shows that he pled guilty to this same charge, but as a third degree

felony. These two documents thus show that he was not convicted of a

misdemeanor. Second, whether Mr. Perez-Hernandez was convicted of a felony

or misdemeanor under Utah law is ultimately beside the point. The relevant

statutory inquiry is whether the state offense of conviction “proscribes conduct

punishable as a felony” under the CSA. Lopez v. Gonzales, 546 U.S. 47, 60

(2006). Mr. Perez-Hernandez does not and cannot seriously dispute that Utah

Code Ann. § 58-37-8(1)(a)(iii) proscribes conduct that is punishable as a felony

under the CSA.

At the very least, Mr. Perez-Hernandez submits we should review the

decision of the BIA affirming the immigration judge’s denial of his request for a

continuance of the proceedings while he sought an adjustment of status. But

having determined that Mr. Perez-Hernandez committed an aggravated felony

pursuant to the terms of § 1227(a)(2)(A)(iii), we lack jurisdiction to review the

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agency’s final order of removal, including its interlocutory order denying his

request for a continuance. 8 U.S.C. § 1252(a)(2)(C). Our review is also barred

by § 1252(a)(2)(B), which generally prohibits review of discretionary decisions by

the Attorney General or Secretary of Homeland Security.

Mr. Perez-Hernandez replies that, even in light of these statutory

injunctions, we might have jurisdiction at least “so far as those determinations

present constitutional claims or questions of law involving statutory

construction.” Kechkar v. Gonzales, 500 F.3d 1080, 1083 (10th Cir. 2007).

Mr. Perez-Hernandez then submits that the BIA has previously permitted

continuances in similar circumstances and its failure to do so here violates due

process. But whatever else is wrong with his argument, the effort to invoke a

constitutional “due process” interest surely is. Mr. Perez-Hernandez has

identified no source of law entitling him to a continuance, such that due process

might be offended by its denial here. Instead, at most he has shown that the

immigration judge and BIA have broad statutory discretion to grant or deny

continuances in these cases. That they could have offered a continuance but

chose not to do so in Mr. Perez-Hernandez’s case is something we have no

jurisdiction to review: “An alien does not present a colorable constitutional claim

capable of avoiding the jurisdictional bar by arguing that the evidence was

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incorrectly weighed, insufficiently considered, or supports a different outcome.”

Id. at 1084.

The petition for review is dismissed.

Entered for the Court

Neil M. Gorsuch

Circuit Judge

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