Summary Calendar NOEL DELANO FITZGERALD WARMINGTON v. Peter Dkeisler, Acting U Sattorney General

* 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should not be published and is not precedent except under the limited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. 06-60521
Summary Calendar
NOEL DELANO FITZGERALD WARMINGTON
Petitioner
v.
PETER D KEISLER, ACTING U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A38 576 167
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Noel Warmington petitions for review of a final order of removal of the
Board of Immigration Appeals (BIA) that affirmed the determination that he
was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and the denial of his
application for relief in the form of a waiver of inadmissibility under
8 U.S.C. § 1182(c).
Although the respondent does not argue it, whether an appeal is moot is
a jurisdictional issue because it implicates the Constitution’s Article III
United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2007
Charles R. Fulbruge III
Clerk

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requirement of a live case or controversy. We must raise the question of
mootness sua sponte, and we review the question de novo. United States v.
Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).
If Warmington’s 1996 conviction for possession of crack cocaine was a
“conviction” for immigration purposes, rendering him inadmissible under
8 U.S.C. § 1182(a)(2)(i)(II), then his removal has the collateral consequence of
making him inadmissible to the United States for a period of five years. See
8 U.S.C. § 1182(a)(9)(A)(i). This collateral consequence prevents this case from
being moot. See Alwan v. Ashcroft, 388 F.3d 507, 510-11 (5th Cir. 2004)(holding
that due to collateral consequence of permanent inadmissibility, deportation did
not render case moot); Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986)
(same for five-year period of inadmissibility).
Congress has expressly barred judicial review of final orders of removal
against an alien who is removable as a controlled substance violator under
§ 1182(a)(2). 8 U.S.C. § 1252(a)(2)(C). After the enactment of the REAL ID Act
of 2005, we now have jurisdiction, in cases otherwise covered by § 1252(a)(2)(C),
to review questions of law or constitutional claims raised upon a petition for
review. 8 U.S.C. § 1252(a)(2)(D).
Warmington argues that he is not an alien, but a national of the United
States, and he argues that his 1996 conviction is not a “conviction” which would
render him inadmissible, and thus removable, among other legal issues. The
jurisdictional inquiry merges with the merits of these legal issues, and we have
jurisdiction to determine, applying de novo review, whether the jurisdictional
bar of § 1252(a)(2)(C) has been triggered. See Alwan, 388 F.3d at 512.
Warmington argues that he is a national of the United States based on his
2001 application for citizenship and his service in the United States Navy. He
contends that he took an oath of allegiance to the United States when he joined
the Navy and when he applied for citizenship. Warmington applied for
citizenship in 2001, but he did not complete the naturalization process. In

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Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006), we held that “a person may
become a national only by birth or by completing the naturalization process.”
Warmington served in the Navy for three years and received an other than
honorable discharge. Service in the armed forces of the United States and
taking the standard military oath does not make a person a national. Reyes-
Alcaraz v. Ashcroft, 363 F.3d 937, 938-40 (9th Cir. 2004). Warmington is not a
national of the United States.
Warmington argues that his 1996 conviction for possession of crack
cocaine was not really a conviction under 8 U.S.C. § 1101(a)(48)(A) because the
charge was dismissed and no penalty or restraint was imposed on his liberty.
He argues that he was denied due process and equal protection by being charged
wrongfully for immigration purposes.
In reviewing the BIA’s construction of immigration statutes, if Congress
has directly spoken to the precise question at issue, and if the intent of Congress
is clear and unambiguous, then the court will give effect to Congress’ s intent.
Moosa v. I.N.S., 171 F.3d 994, 1005 (5th Cir. 1999) (citing Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). If the
statute is silent or ambiguous, the court will defer to the BIA’s interpretation if
it is based on a permissible construction of the statute. Id.
Congress has defined the term “conviction” to mean
with respect to an alien, a formal judgment of guilt of
the alien entered by a court or, if adjudication of guilt
has been withheld, where--
(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere or
has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien’s liberty
to be imposed.

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8 U.S.C. § 1101(a)(48)(A). In Moosa, we stated that the text of this section was
clear and that Moosa’s Texas deferred adjudication was a “conviction” under the
statute. Moosa, 171 F.3d at 1005-06. We rejected the argument that community
supervision (the equivalent of probation) was not punishment. Id. at 1006 n.7.
In Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 330 (2004) (§ 2241 case), we held
that a Texas deferred adjudication was a “conviction,” notwithstanding the
subsequent dismissal of charges on completion of community supervision.
Although we have not addressed the Massachusetts CWOF procedures,
the First Circuit recently held in De Vega v. Gonzales, ___ F.3d ___, 2007 WL
2696489 at * 3-4 (1st Cir. Sept. 17, 2007), that De Vega’s Massachusetts’s
conviction, in which she admitted to facts sufficient for a finding of guilt, with
a continuation without a finding (CWOF), and with the imposition of a
restitution order, was a conviction within the meaning of the INA.
There is no reason to distinguish Massachusetts’s CWOF procedures and
the Texas deferred adjudication procedures for purposes of concluding that
Warmington’s 1996 conviction is a “conviction” under § 1101(a)(48)(A).
Warmington also argues that his 2005 conviction for possession with
intent to distribute marijuana should not have been used to find him removable
because it was not a final conviction. The BIA agreed with this argument and
did not sustain the IJ’s finding that he was removable under § 1182(a)(2)(C)(i)
as a controlled substance trafficker.
We have previously rejected Warmington’s argument that he should be
treated as if he was a federal first offender under 18 U.S.C. § 3607. See Madriz-
Alvarado, 383 F.3d at 331; see also Danso v. Gonzales, 489 F.3d 709, 715-17 (5th
Cir. 2007) (holding that foreign expungement was not to be given same effect as
expungement of federal conviction under the FFOA, and questioning whether
the FFOA controlled over the subsequently enacted definition of conviction in
§ 1101(a)(48)(A)).

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Warmington’s argument that the 1996 conviction qualifies as a petty
offense refers to the exception contained in § 1182(a)(2)(A)(ii), which applies if
the alien is charged as inadmissible for committing a crime involving moral
turpitude under § 1182(a)(2)(A)(i)(I). Warmington was not charged under that
section but under § 1182(a)(2)(A)(i)(II) for a violation of a state law relating to
a controlled substance. Likewise, his argument that he is not deportable
because his crime involved only one-tenth of a gram of drugs has no merit
because that exception to deportability is contained in § 1227(a)(2)(B)(i) and
applies in the case of a conviction for a single offense involving possession for
one’s own use of 30 grams or less of marijuana. Warmington was not charged
under § 1227, and he was in possession of crack cocaine.
We hold that Warmington is an alien removable for having been convicted
of a criminal offense covered in § 1182(a)(2)(A)(i)(II), and we further hold that
we lack jurisdiction to review the BIA’s final order of removal. See Alwan,
388 F.3d at 515.
Warmington argues that the BIA abused its discretion and denied him due
process in denying his application for a waiver of inadmissibility under § 212(c),
§ 1182(c). He contends that he was denied § 212(c) relief based on an arrest that
did not result in a conviction. He argues that the BIA did not follow established
standards in weighing the equities and adverse factors.
Although Warmington attempts to phrase his arguments in legal and
constitutional terms, he is, in essence, seeking review of the IJ’s discretionary
denial of § 212(c) relief. An IJ’s discretionary denial of relief under § 212(c) does
not present a question of law or a constitutional claim over which this court has
jurisdiction. Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir.2006);
Marquez-Marquez v. Gonzales, 455 F.3d 548, 561 (5th Cir.2006). Therefore, we
lack jurisdiction to review Warmington’s challenge to the BIA’s decision
affirming the IJ’s denial of his application for § 212(c) relief.

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Because we lack jurisdiction to review the final order of removal and the
discretionary denial of § 212(c) relief, the petition for review is DISMISSED.

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