*

After an examination of the briefs and the record, we have concluded that oral argument

is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 14, 2007*

Decided December 18, 2007

Before

 Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 07-1070

JOSE ALEJANDRO GARCIACASIANO,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

No. A75-548-322

O R D E R

Jose Alejandro Garcia-Casiano, a native of Mexico, entered the United States

without inspection in 1991. The Immigration and Naturalization Service thereafter

denied his application for adjustment of status and waiver of inadmissibility, and

an Immigration Judge found him removable and ineligible for cancellation of

removal. The Board of Immigration Appeals affirmed. Garcia-Casiano petitions for

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance 

with Fed. R. App. P. 32.1
No. 07-1070 Page 2

review, arguing that the IJ erred in refusing to grant him a continuance and that

the section of the Immigration and Naturalization Act (INA) that makes certain

aliens convicted of crimes related to controlled substances ineligible for admission is

unconstitutionally vague. We deny Garcia-Casiano’s petition for review.

In March 2005 the INS issued a charging document to Garcia-Casiano

claiming that he was subject to removal on two grounds: (1) as an alien present in

the United States without being admitted or paroled, INA § 212(a)(6)(A)(i), 8 U.S.C.

§ 1182(a)(6)(A)(i), and (2) as an alien convicted of violating a state law relating to a

controlled substance, INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). At his

July 2005 hearing, Garcia-Casiano admitted to the factual allegations in the

charging document, including the allegation that he had been convicted in Illinois

for possessing cocaine in violation of 720 ILCS 570/402(c). He also admitted that he

was removable as an alien present in the United States without being admitted or

paroled. He denied, however, that he was removable under § 212(a)(2)(A)(i)(II) for

having been convicted of a crime relating to a controlled substance. The IJ then

scheduled another hearing for October. Several days later, Garcia-Casiano filed a

complaint for declaratory relief in federal district court seeking a determination

that his state drug conviction did not constitute an aggravated felony.

At the October removal hearing, Garcia-Casiano requested cancellation of

removal under INA § 240A(a) and sought a continuance of the proceedings pending

the resolution of his declaratory action in federal court. See 8 U.S.C. § 1229b(a)(1). 

The IJ denied the continuance, reasoning that it was bound only by decisions of the

BIA and this court. The IJ then held that Garcia-Casiano was removable and

ineligible for cancellation of removal under INA § 240A(a) because that section

applied only to lawful permanent residents. The IJ then ordered Garcia-Casiano’s

removal to Mexico. Shortly thereafter, the district court dismissed without

prejudice Garcia-Casiano’s action for a declaratory judgment. 

Garcia-Casiano appealed the IJ’s decision to the BIA, arguing that his past

drug conviction did not constitute an aggravated felony, that the IJ erred in

refusing to grant a continuance, and that he is eligible for cancellation of removal

under INA § 240A(b). The BIA dismissed Garcia-Casiano’s appeal. It

acknowledged that Garcia-Casiano’s drug conviction did not constitute an

aggravated felony under Lopez v. Gonzales, 127 S. Ct. 625 (2006), yet it held that he

was nonetheless ineligible for relief under INA § 240A(b)(1)(C), which makes

anyone convicted of an offense related to a controlled substance ineligible for

cancellation of removal.

On appeal, Garcia-Casiano argues that the BIA erred in upholding the IJ’s

refusal to continue the proceedings while his district court case was pending. We do

not have jurisdiction to review the denial of Garcia-Casiano’s continuance request. 
No. 07-1070 Page 3

Ali v. Gonzales, 502 F.3d 659, 660 (7th Cir. 2007). And this case does not fall within

the exception noted in Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004),

because the denial of the continuance did not nullify a statutory opportunity to

adjust status. See 8 U.S.C. § 1252(a)(2)(B)(ii). Moreover, the grounds on which

Garcia-Casiano seeks a continuance are moot. His case is no longer pending in the

district court and the question at issue there—whether his past drug offense

constituted an aggravated felony—has been decided in his favor, though it is

irrelevant because he is nonetheless ineligible for cancellation of removal. Thus, we

lack jurisdiction to review the denial of his continuance on multiple grounds. See

St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 626 (7th Cir.

2007) (federal jurisdiction is lacking when a case is moot).

Garcia-Casiano next argues that INA § 212(a)(2)(A)(i)(II) is void for

vagueness under the Due Process Clause of the Fifth Amendment. We have

jurisdiction to review all constitutional claims and questions of law arising out of

deportation hearings, Rosales-Pineda v. Gonzales, 452 F.3d 627, 629-630 (7th Cir.

2006), and our review is de novo, Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.

2001).

We question whether a vagueness challenge to an admissibility statute—as

opposed to a removal statue—is cognizable because the constitutional requirement

of fair warning does not apply to standards for admission of aliens given that

Congress has plenary power to make admission rules. See, e.g, Beslic v. INS, 265

F.3d 568, 571 (7th Cir. 2001); Boutilier v. INS, 387 U.S. 118, 123 (1967). But even

assuming the vagueness doctrine applies to § 212(a)(A)(i)(II), Casiano’s challenge is

without merit. A statute is unconstitutionally vague when its language fails to

convey a “sufficiently definite warning as to the proscribed conduct when measured

by common understanding and practices.” Beslic, 265 F.3d at 572 (internal

quotations omitted). A statute that contains “terms so vague that [persons] of

common intelligence must necessarily guess at its meaning and differ as to its

application” will be struck down. Gresham v. Peterson, 225 F.3d 899, 907 (7th Cir.

2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984)).

 

INA § 212(a)(A)(i)(II) makes any alien who has been convicted of a law

relating to a controlled substance inadmissible:
No. 07-1070 Page 4

[A]ny alien convicted of, or who admits having committed, or who

admits committing acts which constitute the essential elements of . . .

a violation (or conspiracy or attempt to violate) any law or regulation

of a State, the United States, or foreign country relating to a

controlled substance (as defined in section 802 of Title 21) . . . is

inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(II). Garcia-Casiano argues that the language above

stating that “any law or regulation of a State . . . relating to a controlled substance”

is so vague that a person of common intelligence would not be forewarned as to

what activity is proscribed. We are unpersuaded. No person of common

intelligence would believe that a conviction for possessing cocaine is not

encompassed by the language of the statute. Cocaine is commonly understood to be

a controlled substance, and possession of a controlled substance is commonly

understood to be illegal. Finally, Garcia-Casiano fails to point to any aspect of the

statute that might lead to arbitrary enforcement. 

We DENY Garcia-Casiano’s petition for review.