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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

June 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60053

Summary Calendar

MUHAMMAD NAVID ASRAR,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A78 961 229

--------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

Muhammad Navid Assar, a native and citizen of Pakistan,

petitions for review of the order of the Board of Immigration

Appeals (BIA) adopting and affirming the immigration judge’s (IJ)

decision denying asylum relief and withholding of removal under

the Immigration and Naturalization Act (INA) and the Convention

Against Torture (CAT).

The REAL ID Act generally precludes judicial review of

discretionary decisions of the Attorney General, including the

grant or denial of a waiver of removability. 8 U.S.C. 
No. 06-60053

-2-

§ 1252(a)(2)(B)(ii); see Gutierrez-Morales v. Homan, 461 F.3d 

605, 609 (5th Cir. 2006). The Act also precludes judicial review

of any removal order against an alien who is removable based on

commission of an aggravated felony. § 1252(a)(2)(C); see

Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 2006),

petition for cert. denied, 127 S. Ct. 40 (2006). However, none of

these provisions “shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition

for review . . . .” § 1252(a)(2)(D). 

This court also retains jurisdiction to determine whether

the underlying facts deprive this court of jurisdiction. See

Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001). Asrar

acknowledges that he was convicted of unlawful possession of

ammunition in violation of 18 U.S.C. § 922(g)(5)(A) and

924(a)(2), but denies that this constitutes an aggravated felony

for purposes of the INA. Thus, the jurisdictional facts that

must be reviewed in this case are whether Asrar is an alien who

is removable by reason of having committed an offense covered by

8 U.S.C. § 1252(a)(2)(C). 

This court conducts a de novo review to determine whether

the particular statue that the prior conviction is under falls

within the relevant INA definition. Omari v. Gonzales, 419 F.3d

303, 306-07 (5th Cir. 2005). This “categorical approach”

requires that this court look to the statute under which the

petitioner was convicted, rather than the facts underlying the
No. 06-60053

-3-

conviction, and compare the statutory elements to the definition

of an aggravated felony in 8 U.S.C. § 1101(a)(43). Larin-Ulloa

v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006). 

Asrar was convicted for unlawful possession of ammunition in

violation of § 922(g)(5)(A). Section 1101(a)(43), includes in

its definition of “aggravated felony,” an offense described in

§ 922(g)(5). See § 1101(a)(43)(E)(ii). Because the statute of

conviction falls within the relevant INA definition, and because 

Asrar’s petition fails to raise either a constitutional claim or

a question of law, this court lacks jurisdiction to review

Asrar’s challenge to the BIA’s decision affirming the IJ’s denial

of asylum relief and withholding of removal under the INA and

CAT. 

Accordingly, the petition is DISMISSED for lack of

jurisdiction.