Ostilio Paguada v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 19, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12511
Non-Argument Calendar
________________________
Agency No. A094-858-632
OSTILIO PAGUADA,,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
l
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 19, 2011)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

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Ostilio Paguada, a native and citizen of Honduras, seeks review of the
Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) denial of his application for withholding of removal under the
Immigration and Nationality Act. Paguada was initially charged as inadmissible
under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who had not been admitted or
paroled. Subsequently, the government added a second charge of removability
under 8 U.S.C. § 1182(a)(2)(A)(i)(II), for being an alien who was convicted of a
controlled substance offense. Paguada was found removable on both grounds and
sought, as a form of relief, withholding of removal on the basis that, as a person1
with HIV/AIDS, he fears that he will be persecuted in Honduras.
In his petition for review, Paguada raises the same two claims that he raised
before the BIA, and which the BIA denied. First, he argues that his right to due
process under the Fifth Amendment was violated during the immigration court
hearing because comments between witnesses, the government, and the IJ were
not completely and simultaneously translated. Second, Paguada argues that, based
on the record evidence, the BIA erred in determining that he had not established
that it was more likely than not that he would be persecuted on account of his HIV
Paguada also sought asylum and relief under the United Nations Convention Against1
Torture, both claims which were denied and are not at issue in this appeal.
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status should he be removed to Honduras.
When examining a petition for review, “we must first consider whether we
have subject matter jurisdiction to hear the petition at all.” Resendiz-Alcaraz v.
U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). We review subject matter
jurisdiction de novo. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332
(11th Cir. 2003). Because the IJ found Paguada removable, in part, based on his
conviction of a controlled-substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II),
we only have jurisdiction to review his petition to the extent that he raises
constitutional claims and questions of law. See Garces v. U.S. Att’y Gen., 611
F.3d 1337, 1343-44 (11th Cir. 2010) (no jurisdiction to review a final order of
removal when an alien is removable for having committed an offense involving a
controlled substance); but see 8 U.S.C. § 1252(a)(2)(D) (“Nothing in2
subparagraph (B) or (C), . . . which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law.”).
Accordingly, we are without jurisdiction to review Paguada’s claim that the
BIA erred in determining, based on the record, that he failed to establish that it is
more likely than not that he will be persecuted in Honduras based on his HIV
Although the IJ did grant Paguada’s application for voluntary departure, she also entered2
an alternate order of removal, thereby raising the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C).
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status. Whether Paguada has established that it is more likely than not that he will
be persecuted for purposes of withholding of removal is a factual determination,
see Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002), not one that
raises a constitutional claim or question of law, and therefore is not reviewable in
this case where Paguada is removable for having committed a controlled substance
offense. See 8 U.S.C. § 1252(a)(2)(C), (D).
Paguada’s due process claim is, however, a constitutional claim for which
we retain jurisdiction to review de novo. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808
(11th Cir. 2006). “To establish due process violations in removal proceedings,
aliens must show that they were deprived of liberty without due process of law,
and that the asserted errors caused them substantial prejudice.” Lonyem v. U.S.
Att’y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003). To establish substantial
prejudice, an alien must show that the outcome of their proceeding would have
been different but for the due process violation. See Patel v. U.S. Att’y Gen., 334
F.3d 1259, 1263 (11th Cir. 2003).
Even if we agree with Paguada that parts of the immigration court hearing
were not translated completely and simultaneously, we still must deny his claim
because he has failed to show that any translation deficiency caused him
substantial prejudice. Other than generalized statements in his brief that he has a
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right to a fair hearing and should be allowed to create a full record, Paguada fails
to show how the outcome of his removal proceeding would have been different,
but for the deficiencies he alleges.
PETITION DISMISSED, in part, and DENIED, in part.
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