Carlos Posadas Paguada v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 1, 2019
• Docket: 18-12893
• Status: Unpublished

Opinion

Case: 18-12893 Date Filed: 02/01/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12893 Non-Argument Calendar ________________________

Agency No. A216-171-749

CARLOS POSADAS PAGUADA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(February 1, 2019)

Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM: Case: 18-12893 Date Filed: 02/01/2019 Page: 2 of 5

Carlos Posadas Paguada is a native and citizen of Honduras who fears

persecution by gang members if he is returned to his home country. He claims that

one of his sisters was raped by gang members in Honduras, another sister was

kidnapped and beaten, and his family was threatened by the perpetrators of both

incidents.

The government initiated proceedings to remove Posadas Paguada from the

United States in 2017. Among other grounds, the government alleged that he was

subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because he had been

convicted of a controlled-substance offense. Posadas Paguada, who was represented

by counsel, conceded removability as charged and then, seeking to prevent his

removal, filed applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). An immigration judge (“IJ”) denied these

applications after hearing testimony from Posadas Paguada and one of his sisters,

and the BIA affirmed the IJ’s decision on appeal. So Posadas Paguada was ordered

removed to Honduras.

Posadas Paguada now petitions this Court for review of the denial of his

applications for withholding of removal and CAT relief. He contends that the IJ

erred in finding his sister’s testimony not credible and that the evidence established

persecution based on his membership in a particular social group. He also argues

2 Case: 18-12893 Date Filed: 02/01/2019 Page: 3 of 5

that he is eligible for CAT relief because he has shown that the Honduran

government would not protect him from persecution.

The government filed a motion to dismiss Posadas Paguada’s petition for lack

of jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which deprives courts of jurisdiction

to review removal orders that are based on certain criminal offenses, including

controlled-substance offenses. Posadas Paguada has not responded to the

government’s motion.

Before we can address Posadas Paguada’s arguments on the merits, we first

must ensure we have jurisdiction to do so. We review our subject-matter jurisdiction

de novo. Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010).

Our jurisdiction to review immigration removal orders is limited by statute.

See 8 U.S.C. § 1252(a)(2). As relevant here, § 1252(a)(2)(C) provides that “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 section

1182(a)(2),” including an offense “relating to a controlled substance” under

§ 1182(a)(2)(A)(i)(II). Notwithstanding this jurisdictional bar, we retain jurisdiction

to review “constitutional claims or questions of law” raised in a petition for review.

8 U.S.C. § 1252(a)(2)(D).

Here, § 1252(a)(2)(C)’s jurisdictional bar applies because Posadas Paguada

conceded removability by reason of having committed a violation of a law relating

3 Case: 18-12893 Date Filed: 02/01/2019 Page: 4 of 5

to a controlled substance under § 1182(a)(2)(A)(i)(II). Specifically, Posadas

Paguada conceded that he was removable by reason of a conviction for possession

of cocaine, in violation of Fla. Stat. § 893.13(6)(a). While “we retain jurisdiction to

determine whether the statutory conditions for limiting judicial review exist,”

Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196 (11th Cir. 2008), Posadas

Paguada does not dispute that he was convicted of an offense “relating to a controlled

substance” under § 1182(a)(2)(A)(i)(II).

Nor does Posadas Paguada offer any other “constitutional claim or question

of law” under § 1252(a)(2)(D). That provision does not permit review of “the

administrative fact findings of the IJ or the BIA as to the sufficiency of the alien’s

evidence and the likelihood that the alien will be [persecuted or] tortured if returned

to the country in question.” Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1280 (11th Cir.

2009); Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013) (factual findings

regarding the likelihood of future harm and challenges to “the weight and

significance given to various pieces of evidence” are unreviewable under

§ 1252(a)(2)(D)). Nor may we review a challenge to the factual grounds on which

an adverse credibility determination was based. See Fynn v. U.S. Att’y Gen., 752

F.3d 1250, 1253 (11th Cir. 2014) (challenges to the “the agency’s credibility

determination and the relative weight accorded to the evidence” are not legal

questions under § 1252(a)(2)(D)). We retain jurisdiction to review whether an

4 Case: 18-12893 Date Filed: 02/01/2019 Page: 5 of 5

undisputed fact pattern amounts as a matter of law to torture or persecution. See

Singh, 561 F.3d at 1280.

Posadas Paguada’s arguments are not of the sort that we have jurisdiction to

review as constitutional claims or questions of law. Posadas Paguada challenges the

agency’s findings that his sister’s testimony was not credible and that he did not face

a clear probability of harm in Honduras, asserting that the agency failed either to

consider certain evidence or to give it proper weight. Because these arguments relate

to the weight and significance given to the evidence and the likelihood that Posadas

Paguada will be persecuted or tortured if returned to Honduras, we lack jurisdiction

over his petition for review. See Fynn, 752 F.3d at 1253; Cole, 712 F.3d at 534;

Singh, 561 F.3d at 1280. Accordingly, we grant the government’s motion and

dismiss the petition for lack of jurisdiction.

PETITION DISMISSED.