Balboa-Longoria v. Gonzales

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
F I L E D
February 27, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 05-60811
(Summary Calendar)
_________________
REYNALDO BALBOA-LONGORIA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
On Petition for Review of a Final Order of Removal Entered by the Board of Immigration
Appeals
A37 724 557
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Reynaldo Balboa-Longoria petitions for review of a final order of the Board of
Immigration Appeals (“BIA”) denying his request for cancellation of removal. Respondent Alberto

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R. Gonzales moves for summary disposition, arguing that Petitioner’s claims are foreclosed by our
recent decision in Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. 2005).
Petitioner is a native and citizen of Mexico who was convicted in Texas state court of
possession of marijuana. After the former Immigration and Naturalization Service (“INS”) initiated
removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), he conceded removability and
requested cancellation of removal under 8 U.S.C. § 1229b(a).
The immigration court concluded that Petitioner was not eligible for such discretionary relief
because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (alien ineligible
for cancellation of removal if “convicted of any aggravated felony”); United States v. Hernandez-
Avalos, 251 F.3d 505, 508 (5th Cir. 2001) (state felony drug possession conviction constitutes an
“aggravated felony” for purposes of removal). The BIA affirmed without opinion.
Petitioner filed a petition for writ of habeas corpus in the United States District Court for the
Southern District of Texas, alleging that the removal order violates the laws and Constitution of the
United States. Upon motion, the district court transferred the case to this court. In accordance with
the Real ID Act, we treat this action as a timely petition for review of the BIA’s final order of
removal. See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th
Cir. 2005) (stating that “[t]he REAL ID Act requires district courts to transfer any pending habeas
cases to the appropriate court of appeals,” and noting that the court of appeals should treat
“transferred case[s] as if [they] had been filed pursuant to a petition for review”); see also Real ID
Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005) (converted peti tions shall not be
subject to the thirty-day filing deadline ordinarily applicable to petitions for review).
Summary disposition is appropriate in at least two circumstances: (1) where time is of the

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essence; and (2) where “the position of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case, or where, as is more frequently
the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
Respondent asserts that the issues and arguments in this case “have been decided by Salazar-
Regino” and, thus, there is no substantial question as to the outcome of the case. Petitioner does not
dispute that Salazar-Regino reject ed the claim of error he asserts here; namely, that his state
conviction for possession of marijuana may not be considered an “aggravated felony” that renders
him ineligible for cancellation of removal. See Salazar-Regino, 415 F.3d at 448 (rejecting the
argument that “aggravated felony” does not include, for immigration purposes, “a drug trafficking
crime” as defined in 18 U.S.C. § 924(c)(2)); id. at 448-49 (rejecting the argument that petitioners’
due process rights were violated by retroactive application of a judicial decision); id. at 451-52
(rejecting the argument that removal violated the Equal Protection Clause because of a difference in
the timing and location of proceedings); id. at 452 (finding an argument based on international law
waived). Rather, he contends that “summary decision on this case would result in overlooking legal
arguments” that were not presented in Salazar-Regino.
The relief Petitioner seeks would require us to act contrary to prior precedent. However, one
panel of this court cannot overrule a prior panel decision. See id. at 448 (court obliged to follow the
panel decision in Hernandez-Avalos); Dahl v. Atkin, 630 F.2d 277, 282 n.4 (5th Cir. 1980) (“[I]n this
Circuit, one panel cannot overrule another”); Williams v. Blazer Fin. Servs., Inc., 598 F.2d 1371,
1374 (5th Cir. 1979) (holding “[a]bsent En Banc reconsideration, we are bound by” prior decisions
of this Circuit). Because we are obliged to follow Salazar-Regino, there is no substantial question

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as to the outcome of this case and summary disposition is appropriate. See NLRB v. Evans Plumbing
Co., 639 F.2d 291, 292 n.1 (5th Cir. 1981).
Respondent’s motion for summary affirmance is GRANTED and the Petition for Review
DENIED. Petitioner’s request that the instant matter be abated until the appeals in Salazar-Regino
have been exhausted is DENIED.

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