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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-61126

Summary Calendar

VICTOR JAVIER JIMENEZ-LOPEZ,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

A37 441 904

Before BENAVIDES, PRADO, AND SOUTHWICK, Circuit Judges.

PER CURIAM:*

Petitioner Victor Javier Jimenez-Lopez, a native and citizen of Mexico,

seeks review of the Board of Immigration Appeals’ (BIA) order that affirmed the

decision by the Immigration Judge (IJ). The IJ found Jimenez’s conviction

records as clear and convincing evidence that Jimenez was subject to removal for

conviction of a crime relating to a controlled substance and denied his

application for cancellation of removal under the Immigration and Nationality

United States Court of Appeals

Fifth Circuit

F I L E D

December 14, 2009

Charles R. Fulbruge III

Clerk
No. 08-61126

2

Act (INA) as ineligible because of his convictions. For the reasons set forth

below, we dismiss his petition in part for lack of jurisdiction and deny in part

because the BIA correctly decided that Jimenez’s convictions constitute an

aggravated felony rendering him ineligible for cancellation of removal.

This Court has statutory jurisdiction to review final orders of removal.

INA § 242, 8 U.S.C. § 1252. However, this jurisdiction is restricted by INA §

242(a)(2)(C), which states that courts do not have jurisdiction “to review any

final order of removal against an alien” who is removed for crimes relating to a

controlled substance under Section 237(a)(2)(B)(i). 8 U.S.C. § 1252(a)(2)(C).

Additionally, we are generally forbidden from reviewing removal orders for cases

in which the alien has been convicted of an aggravated felony. CarachuriRosendo v. Holder, 570 F.3d 263, 265 (5th Cir. 2009) (citations omitted).

Notwithstanding, we retain jurisdiction to review facts and issues involving a

question of law. § 1252(a)(2)(D). Because Jimenez’ petition falls within this

exception, we review the BIA’s rulings of law de novo. See Carachuri-Rosendo,

570 F.3d at 265.

Jimenez contends that neither drug conviction is considered a felony under

the Controlled Substances Act (CSA), and thus, not an aggravated felony that

would render him ineligible for cancellation of removal. Jimenez asks us to

reverse the BIA’s findings that Jimenez has been convicted of a recidivist offense

and that the IJ failed to link Jimenez’ homosexuality and HIV/AIDS disease

properly together. The BIA found Jimenez removable under INA §

237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) because he is an alien who was

convicted of a crime relating to a controlled substance. 

Jimenez’s two drug convictions constitute an aggravated felony. In United

States v. Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005), this Court

concluded that two state convictions for possession could be punished as a felony
No. 08-61126

 The Supreme Court in Lopez v. Gonzalez, 549 U.S. 47 (2006), abrogated one of the

1

Sanchez-Villalobos’ holdings but left intact this determination. See Carachuri-Rosendo, 570

F.3d at 266-67.

3

under the CSA’s recidivism provisions. Later, this Court in United States v. 1

Cepeda-Rios, 530 F.3d 333, 334-35 (5th Cir. 2008), stated its approach to this

issue in Sanchez-Villalobos was still viable after Lopez and again decided that

a second state possession offense punishable as a felony under federal law

qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). CarachuriRosendo, 570 F.3d at 266-67. Recently, this Court affirmed an en-banc decision

by the BIA in Carachuri-Rosendo, that determined that even though the

petitioner had been convicted twice of misdemeanor possession charges but was

not charged as a recidivist, the convictions met the definition of an aggravated

felony under the CSA. Id. at 265. Here, the facts are similar to those in

Carachuri-Rosendo because Jimenez also has two misdemeanor state drug

conviction that the BIA determined under this Court’s case law to meet the

definition of an aggravated felon for recidivist possession. Jimenez’s December

2000 conviction under California law require the same elements as a conviction

under federal possession would require. While Jimenez argues that use of

cocaine should not be considered the same as possession of cocaine, this

argument is foreclosed by our decision in United States v. Courtney, 979 F.2d 45,

49 (5th Cir. 1992), in which we determined that possession and use were not

distinct crimes with separate elements. Jimenez’s 2004 conviction under Florida

law constitutes his second conviction that may be considered together to meet

the definition of an aggravated felony under 21 U.S.C. § 844(a). See SanchezVillalobos, 412 F.3d at 576-77. Thus, Jimenez’s two drug convictions render

him ineligible for cancellation of removal.

Jimenez also asks this Court to review his claim for withholding of

removal. But, as Jimenez merely disagrees with the Board’s finding of evidence
No. 08-61126

4

and does not raise a constitutional claim or question of law, we lack jurisdiction

to review. 

Therefore, the petition for review is DENIED.