Case: 09-60560 Document: 00511258705 Page: 1 Date Filed: 10/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2010
No. 09-60560
Summary Calendar Lyle W. Cayce
Clerk
JOSUE DAVID CRUZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A070 883 216
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Josue 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
controlled substance offense, and under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien
present in the United States without being admitted or paroled. He applied for
withholding of removal under 8 C.F.R. § 208.16(b) and 8 U.S.C. § 1101(a)(42)(A),
based on past persecution. Cruz petitions for review of the Board of Immigration
Appeals’ (BIA) de novo dismissal of his appeal from the Immigration Judge’s (IJ)
order 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-60560 Document: 00511258705 Page: 2 Date Filed: 10/08/2010
No. 09-60560
Pursuant to 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to review
Cruz’ claim for withholding of removal. That section states: “no court shall have
jurisdiction to review any final order of removal against an alien who is
removable 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
admits 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
retain 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
findings of fact reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d
339, 344-45 (5th Cir. 2005). “We do, of course, also have jurisdiction to
determine our own jurisdiction.” Marquez-Marquez v. Gonzales, 455 F.3d 548,
554 (5th Cir. 2006). “We review de novo questions relating to our jurisdiction to
consider challenges to a final order of the BIA.” Solorzano-Moreno v. Mukasey,
296 F. App’x 391, 393 (5th Cir. 2008) (citing Balogun v. Ashcroft, 270 F.3d 274,
277 (5th Cir. 2001)).
Cruz contends he has shown entitlement to withholding of removal
because he suffered past persecution by gangs in Honduras and he is in danger
of future persecution by gangs if removed there. In short, his contentions
constitute a disagreement with the factual determinations of the IJ and BIA. In
other words, his petition does not raise any constitutional claims or questions of
law. Accordingly, we lack jurisdiction to review the final order of removal. See
Zhang, 432 F.3d at 344; Alwan v. Ashcroft, 388 F.3d 507, 515 (5th Cir. 2004).
DISMISSED.
2