United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2006
Charles R. Fulbruge III
Clerk
No. 05-60503
Summary Calendar
JOAQUIN MARTINEZ-LOPEZ,
Petitioner,
v.
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from an Order of the
Board of Immigration Appeals
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Joaquin Martinez-Lopez, a native and citizen of Mexico, was
admitted to the United States as a lawful permanent resident alien
on September 18, 1983. On October 11, 1999, Martinez-Lopez pleaded
guilty in Texas state court to possession of less than one gram of
cocaine, a felony under state law. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(b) (Vernon Supp. 1999). The court granted Martinez-Lopez
deferred adjudication, placing him on probation.
Based on the criminal conviction, the Department of Homeland
Security began removal proceedings against Martinez-Lopez in 2004.
On January 25, 2005, an immigration judge found that Martinez-
Lopez’s 1999 drug conviction rendered him removable as an alien
convicted of a controlled substances violation and as an alien
convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(B)(i) &
(a)(2)(A)(iii) (2000). The judge also found that the conviction
rendered him ineligible for cancellation of removal. 8 U.S.C.
§ 1229b(a)(3) (Supp. V 2005) (prohibiting the Attorney General from
canceling the removal of a permanent resident if the permanent
resident has been convicted of an aggravated felony). The Board of
Immigration Appeals adopted and affirmed the immigration judge’s
decision with a brief explanatory order.
Martinez-Lopez challenges his removal on three grounds.
First, he argues that because the state conviction would be
punishable as a misdemeanor under federal law, it should not be
treated as an aggravated felony for removal purposes.1 This
argument is foreclosed by United States v. Hernandez-Avalos, 251
F.3d 505, 508–10 (5th Cir. 2001). Second, Martinez-Lopez argues
that construing his conviction as an aggravated felony violates the
1
The Supreme Court has granted certiorari to consider this
issue. Lopez v. Gonzalez, 714 F.3d 934 (8th Cir. 2005), cert.
granted, 126 S. Ct. 165 (U.S. Apr. 03, 2006) (No. 05-547). Until
the Court issues a decision, we are bound by existing Fifth
Circuit precedent. Martin v. Medtronic, Inc., 254 F.3d 573, 577
(5th Cir. 2001) (“[A] panel of this court can only overrule a
prior panel decision if such overruling is unequivocally directed
by controlling Supreme Court precedent.”) (internal quotation and
citation omitted).
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due process and equal protection guarantees of the Constitution.
These constitutional arguments are foreclosed by Salazar-Regino v.
Trominski, 415 F.3d 436, 450–52 (5th Cir. 2005). Third, Martinez-
Lopez argues that construing the conviction as an aggravated felony
violates international law. The government concedes that this is
an issue of first impression.2
Martinez-Lopez argues that his removal violates two treaties,
the Convention on the Rights of the Child (“CRC”) and the
International Covenant on Civil and Political Rights (“ICCPR”).
The United States has not ratified the CRC, and, accordingly, the
treaty cannot give rise to an individually enforceable right. The
Amiable Isabella, 19 U.S. (6 Wheat.) 1, 72 (1821) (a treaty
requires “a formal ratification”); Garza v. Lappin, 253 F.3d 918,
925 (7th Cir. 2001) (explaining that when the United States has
signed, but not ratified, an international agreement, the agreement
“does not yet qualify as one of the ‘treaties’ of the United States
that creates binding obligations”). In addition, this Court cannot
grant relief under the ICCPR because it is not a self-executing
treaty. Beazley v. Mitchell, 242 F.3d 248, 267 (5th Cir. 2001).
Martinez-Lopez also argues that customary international law,
including principles in the Universal Declaration of Human Rights,
2
This defeats the government’s argument that this Court
lacks jurisdiction over the petition. See 8 U.S.C. §
1252(a)(1)(D) (allowing judicial review of removal proceedings
when “questions of law” are raised).
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prevents his removal. International customs, however, cannot
override congressional intent as expressed by statute. Sosa v.
Alvarez-Machain, 542 U.S. 692, 731 (2004) (holding that Congress
may “shut the door to the law of nations” either “explicitly, or
implicitly by treaties or statutes that occupy the field”);
Bradvica v. INS, 128 F.3d 1009, 1024 n.5 (7th Cir. 1997)
(“[C]ustomary international law is not applicable in domestic
courts where there is a controlling legislative act, such as the
statute here.”). Given that Martinez-Lopez is directly challenging
a statute, he cannot appeal to customary international law.
The petition for review is DENIED.
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