1

Alberto Gonzales has been appointed to serve as Attorney General of the

United States, and is substituted as appellee pursuant to Federal Rule of Appellate

Procedure 43(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1488

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Salvador Ornelas, *

*

Petitioner, *

* Petition for Review

v. * of an Order of the

* Board of Immigration Appeals.

Alberto Gonzales,1

 Attorney General *

of the United States, * [UNPUBLISHED]

*

Respondent. *

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Submitted: April 4, 2005

Filed: June 13, 2005

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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.

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PER CURIAM.

Salvador Ornelas petitions for review of an order of the Board of Immigration

Appeals (BIA), which affirmed an Immigration Judge’s (IJ’s) order of removal and

denial of Ornelas’s request for cancellation of removal. We deny the petition.
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Ornelas, a native of Mexico, was admitted to the United States in 1988 as a

lawful permanent resident (LPR). On July 18, 2000, Ornelas pleaded guilty in

Sedgwick County, Kansas, to a felony charge of possessing cocaine, and on August

21, 2000, Ornelas pleaded guilty, again in Sedgwick County, to driving under the

influence of alcohol (DUI). In April 2001 an IJ found Ornelas removable as an alien

who, after admission to the United States, had been convicted of a controlledsubstance offense (the cocaine-possession conviction), see 8 U.S.C.

§ 1227(a)(2)(B)(i), and as an alien convicted of an aggravated felony (the DUI), see

8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). The IJ also found Ornelas ineligible

to apply for cancellation of removal because his DUI conviction was an aggravated

felony. See 8 U.S.C. § 1229b(a) (LPR may apply for cancellation of removal if he

has been an LPR for at least 5 years, has resided in the United States continuously for

7 years, and has not been convicted of an aggravated felony). In October 2001 the

BIA affirmed the IJ’s finding of removability, but reversed the IJ’s finding that

Ornelas’s DUI conviction was an aggravated felony and remanded the case to permit

Ornelas to apply for cancellation of removal. 

In May 2002 Ornelas submitted an application for cancellation of removal. In

November 2002 the INS lodged an additional charge against Ornelas claiming that

he was removable under section 1227(a)(2)(A)(iii) because his Kansas felony

cocaine-possession conviction was an aggravated felony (as well as a

controlled-substance offense). In December 2002 the IJ found Ornelas was ineligible

for cancellation of removal, agreeing with the INS that Ornelas’s cocaine-possession

conviction was an aggravated felony, and ordered him removed. See United States

v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997) (per curiam) (state drug offense

is “an aggravated felony” for purposes of Guidelines sentencing enhancement if

offense is classified as felony under law of relevant state); In re Yanez-Garcia, 23 I.

& N. Dec. 390, 393-98 (BIA 2002) (resorting to circuit law on sentencing, in the
2

The IJ’s decision, therefore, constitutes the final agency determination for

purposes of judicial review. See Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th

Cir. 2003).

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absence of law in circuit in immigration context, for definition of aggravated felony).

Ornelas appealed to the BIA, which summarily affirmed.2

Although the decision to grant cancellation of removal under section 1229b is

an unreviewable discretionary act by the Attorney General, see 8 U.S.C.

§ 1252(a)(2)(B), the nondiscretionary determinations underlying such a decision are

subject to our review, see Ortiz-Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir.

2005) (finding appeals court had jurisdiction to review IJ’s decision that LPR did not

meet continuous-physical-presence requirement, and thus was ineligible for

cancellation relief); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir. 2005)

(same). We also have jurisdiction to consider substantial constitutional challenges

in the immigration context. See Somakoko v. Gonzales, 399 F.3d 882, 882-84 (8th

Cir. 2005) (reviewing alien’s due process claim); Vasquez-Velezmoro v. INS, 281

F.3d 693, 695-96 (8th Cir. 2002) (reviewing alien’s equal protection claim).

Ornelas asserts that in July 2000, when he entered his guilty plea to the Kansas

cocaine-possession charge, he relied on the fact that his conviction would not have

been classified as an aggravated felony under the BIA’s “hypothetical felony rule.”

At that time, when there was no immigration law in the applicable federal circuit that

defined “aggravated felony,” the BIA would follow the so-called hypothetical felony

rule: a state drug offense was considered an aggravated felony only if it was

analogous to an offense punishable as a felony under federal drug laws. See In re KV-D-, 22 I. & N. Dec. 1163, 1168-1174 (BIA 1999). Under the hypothetical felony

rule, Ornelas’s cocaine-possession charge would not have been considered an

aggravated felony because under federal law simple cocaine possession is classified

only as a misdemeanor. See 21 U.S.C. § 844(a) (authorizing not more than 1 year
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imprisonment for possession of controlled substance); 18 U.S.C. § 3559(a) (offense

is misdemeanor if maximum term of imprisonment is 1 year or less). After Ornelas

pleaded guilty, the BIA issued Yanez-Garcia, which used sentencing law as the

default rule rather than the hypothetical felony rule, and essentially overruled In re

K-V-D-. Ornelas argues that classifying his cocaine-possession conviction as an

aggravated felony under Yanez-Garcia and Eighth Circuit precedent in the sentencing

context violated his due process rights. We disagree.

When Ornelas pleaded guilty to the Kansas felony cocaine-possession charge

in July 2000, we had explicitly rejected the hypothetical felony approach in the

Guidelines context and considered a state drug-possession conviction to be an

aggravated felony, see Briones-Mata, 116 F.3d at 309; and further, in the immigration

context, we had rejected the hypothetical felony rule and had held that a state felony

cocaine-possession conviction was an aggravated felony, see Herrera-Soto v. INS,

No. 98-2979, 1999 WL 272422, at *1 (8th Cir. May 5, 1999) (unpublished per

curiam). The initial venue determination in removal proceedings is determined by the

INS District Director who files the charging document. See 8 C.F.R. §§ 1003.14 and

1003.20 (2004); Matter of Seren, 15 I. & N. Dec. 590, 591-92 (BIA 1976). Thus, it

was entirely foreseeable, at the time that Ornelas entered the guilty plea, that he could

be subject to removal proceedings in the Eighth Circuit, as in fact occurred in this

case. To the extent that Ornelas relied on the hypothetical felony rule when he

entered his guilty plea, that reliance was not reasonable and no due process violation

occurred.

Accordingly, we deny the petition.

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