Josue Cruz v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60560 Dismissed for lack of jurisdiction ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 11/29/2010 [09-60560]

Josue Cruz v. Eric Holder, Jr.

Doc. 0

Case: 09-60560

Document: 00511258705

Page: 1

Date Filed: 10/08/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60560 S u m m a r y Calendar October 8, 2010 Lyle W. Cayce Clerk

J O S U E DAVID CRUZ, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A070 883 216

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* J o s u e David Cruz, a native and citizen of Honduras, conceded removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien convicted of a c o n t r o lle d substance offense, and under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien p r e s e n t in the United States without being admitted or paroled. He applied for w it h h o ld in g of removal under 8 C.F.R. § 208.16(b) and 8 U.S.C. § 1101(a)(42)(A), b a s e d on past persecution. Cruz petitions for review of the Board of Immigration A p p e a ls ' (BIA) de novo dismissal of his appeal from the Immigration Judge's (IJ) o r d e r denying his application (he was, however, granted voluntary departure).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-60560

Document: 00511258705 Page: 2 No. 09-60560

Date Filed: 10/08/2010

P u r s u a n t to 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to review C r u z ' claim for withholding of removal. That section states: "no court shall have ju r is d ic t io n to review any final order of removal against an alien who is r e m o v a b le by reason of having committed a criminal offense covered in 8 U.S.C. § 1182(a)(2) . . . ." Section 1182(a)(2) provides: "any alien convicted of, or who a d m it s having committed . . . (II) a violation of any law or regulation of a State . . . [or] the United States . . . relating to a controlled substance (as defined in [21 U .S .C . § 802]) is inadmissible". An exception, however, mandates this court r e t a in jurisdiction for review of "constitutional claims or questions of law" raised in a petition for review filed in an appropriate court of appeals. 8 U.S.C.

§ 1252(a)(2)(D); see Arce-Vences v. Mukasey, 512 F.3d 167, 170 (5th Cir. 2007). That an alien is not eligible for asylum or withholding of removal are fin d in g s of fact reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d 3 3 9 , 344-45 (5th Cir. 2005). "We do, of course, also have jurisdiction to

d e t e r m in e our own jurisdiction." Marquez-Marquez v. Gonzales, 455 F.3d 548, 5 5 4 (5th Cir. 2006). "We review de novo questions relating to our jurisdiction to c o n s id e r challenges to a final order of the BIA." Solorzano-Moreno v. Mukasey, 2 9 6 F. App'x 391, 393 (5th Cir. 2008) (citing Balogun v. Ashcroft, 270 F.3d 274, 2 7 7 (5th Cir. 2001)). Cruz contends he has shown entitlement to withholding of removal b e c a u s e he suffered past persecution by gangs in Honduras and he is in danger o f future persecution by gangs if removed there. In short, his contentions

c o n s t it u t e a disagreement with the factual determinations of the IJ and BIA. In o t h e r words, his petition does not raise any constitutional claims or questions of la w . Accordingly, we lack jurisdiction to review the final order of removal. See Z h a n g , 432 F.3d at 344; Alwan v. Ashcroft, 388 F.3d 507, 515 (5th Cir. 2004). D IS M IS S E D .

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