                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                  FILED
                                                                     U.S. COURT OF APPEALS
                                            No. 11-10206               ELEVENTH CIRCUIT
                                        Non-Argument Calendar           SEPTEMBER 7, 2011
                                      ________________________              JOHN LEY
                                                                             CLERK
                                           Agency No. A024-668-747


FERNANDO JOSE GONZALEZ BLANDON,

llllllllllllllllllllllllllllllllllllllll                                        Petitioner,

                                                    versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                      Respondent.

                                     ________________________

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

                                             (September 7, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

         Fernando Jose Gonzalez Blandon seeks review of the Board of Immigration
Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order

denying his applications for adjustment of status under the Nicaraguan Adjustment

and Central American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100,

§ 202, 111 Stat. 2160, 2193 (1997); asylum under the Immigration and Nationality

Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding of removal under the United

Nations Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c).

      We must first determine whether we have jurisdiction to review the BIA’s

denial of Gonzalez Blandon’s application for adjustment of status under

NACARA. Gonzalez Blandon also raises four additional claims: (1) the BIA

applied the wrong burdens of proof; (2) the BIA erroneously sustained the charge

that Gonzalez Blandon was subject to removal under INA § 237(a)(2)(B)(i), 8

U.S.C. § 1227(a)(2)(B)(i); (3) Gonzalez Blandon is statutorily eligible for a waiver

of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h) (“§ 212(h) waiver”);

and (4) the BIA erroneously denied his applications for asylum, withholding of

removal, and CAT relief.

                                 I. DISCUSSION

A. Jurisdiction

      We first examine our jurisdiction over Gonzalez Blandon’s claims. “We

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review subject matter jurisdiction de novo.” Frech v. U.S. Att’y Gen., 491 F.3d

1277, 1280 (11th Cir. 2007). Although we lack jurisdiction to review a final

decision on an application for an adjustment of status under NACARA, we retain

jurisdiction to consider substantial constitutional claims related to such an

application. Id. at 1280-81. “A ‘substantial’ constitutional challenge is one that

has merit.” Id. at 1280 n.5. We also lack jurisdiction to review the denial of a

§ 212(h) waiver of inadmissibility. INA § 242(a)(2)(B)(i), 8 U.S.C.

§ 1252(a)(2)(B)(i). However, “we retain jurisdiction to determine whether the

statutory conditions for limiting judicial review exist.” Vuksanovic v. U.S. Att’y

Gen., 439 F.3d 1308, 1310 (11th Cir. 2006). Additionally, we retain jurisdiction

to review “constitutional claims and questions of law” relating to a denial of a

§ 212(h) waiver. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Whether the

correct legal standards were applied is a question of law. Frech, 491 F.3d at 1281.

Like review of a decision under NACARA, under INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D), we only retain jurisdiction to consider substantial constitutional

claims in a petition for review of the denial of a § 212(h) waiver. Alvarez-Acosta

v. U.S. Att’y Gen., 524 F.3d 1191, 1197 (11th Cir. 2008).

      A due process claim only has merit if the alien has been substantially

prejudiced. Ibrahim v. U.S. INS, 821 F.2d 1547, 1550 (11th Cir. 1987). An alien

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cannot show substantial prejudice based on the denial of discretionary relief

“because no standards exist for a court to determine whether the executive would

have granted the extraordinary relief anyway.” Mejia Rodriguez v. Reno, 178 F.3d

1139, 1146, 1148 (11th Cir. 1999) (holding that even if the appellant received

ineffective assistance of counsel, there was no due process violation because there

was no way to know whether the discretionary relief would have been granted but

for the ineffective assistance).

      A court may not review a final order of removal unless “the alien has

exhausted all administrative remedies available to the alien as of right.” INA

§ 242, 8 U.S.C. § 1252(d)(1). The petitioner must administratively exhaust his

arguments by raising them before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen.,

463 F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to consider

unexhausted procedural due process claims. Id. at 1251.

      First, we have jurisdiction to consider whether the BIA applied the correct

burdens of proof because whether the correct legal standards were applied is a

question of law. See Frech, 491 F.3d at 1281. Second, we have jurisdiction to

consider whether the BIA erroneously sustained the government’s charge that

Gonzalez Blandon was removable under INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i), because this issue does not concern his application for an

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adjustment of status, nor does it concern his application for discretionary relief.

Third, we have jurisdiction to consider whether Gonzalez Blandon is statutorily

eligible for a § 212(h) waiver. See Vuksanovic, 439 F.3d at 1310. Fourth, we do

not have jurisdiction to consider Gonzalez Blandon’s due process arguments

because he did not exhaust these procedural due process claims and because they

are meritless. Gonzalez Blandon cannot show substantial prejudice because there

are no standards for us to determine whether he would have been granted the

discretionary relief. See Mejia Rodriguez, 178 F.3d at 1148 (11th Cir. 1999).

Accordingly, we dismiss Gonzalez Blandon’s petition for review as to his due

process arguments.



B. Burden of Proof

      On appeal, Gonzalez Blandon argues that the BIA and IJ erred by not

requiring the Government to prove by clear, unequivocal, and convincing

evidence that he was removable under INA § 237(a)(2)(B)(i), 8 U.S.C. §

1227(a)(2)(B)(i). Gonzalez Blandon denied that he was removable under this

section before both the IJ and the BIA, and, he argues, the Government should

have been required to prove that he was removable under this section even though

he had already conceded that he was removable under another section of the INA,

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specifically INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Gonzalez Blandon

asserts that only after the Government proved that he was removable under INA §

237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) should the burden of proof switch to

him to show that he was eligible for the § 212(h) waiver.

      We review questions of law de novo. Al Najjar v. Ashcroft, 257 F.3d 1262,

1284 (11th Cir. 2001). The government bears the burden of proving that the alien

is removable by clear and convincing evidence. INA § 240(c)(3)(A); 8 U.S.C.

§ 1229a(c)(3)(A). However, once that burden is established, the alien bears the

burden of establishing that: (1) he meets the eligibility requirements for the relief

sought; and (2) if he seeks discretionary relief, he “merits a favorable exercise of

discretion.” Id. § 240(c)(4)(A); 8 U.S.C. § 1229a(c)(4)(A). An alien may only

receive an adjustment of status under NACARA if he is “otherwise admissible to

the United States.” Pub. L. No. 105-100, § 202(a)(1)(B), 111 Stat. 2160, 2193

(1997). An alien seeking admission must establish that he “is clearly and beyond

doubt entitled to be admitted and is not inadmissible under” INA § 212, 8 U.S.C.

§ 1182. Id. § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

      The BIA applied the correct burdens of proof in this case. The BIA found

that Gonzalez Blandon was removable under INA § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B), because he conceded that he was removable under this section.

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Only then did the BIA place a burden of proof on Gonzalez Blandon. Specifically,

the BIA then required him to show that his conviction for the introduction of

contraband into a penal institution did not render him inadmissible. This burden

of proof is consistent with INA § 240, 8 U.S.C. § 1229a, which requires an alien

seeking admissibility to prove “clearly and beyond a doubt [that he] is not

inadmissible under” INA § 212, 8 U.S.C. § 1182. INA § 240(c)(2)(A), 8 U.S.C.

§ 1229a(c)(2)(A).



C. Removal under INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(i)

      Next, Gonzalez Blandon argues that the BIA and IJ erred in sustaining the

charge of removability under INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(i).

The Government had relied upon Gonzalez Blandon’s conviction report, but, he

asserts, this report does not establish that the contraband at issue in that conviction

was related to a controlled substance, other than marijuana for his personal use.

      Gonzalez Blandon’s argument that the BIA erroneously sustained the

charge of removability under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) is

belied by the record, which shows that the BIA simply did not consider this charge

because Gonzalez Blandon conceded that he was subject to removal under INA

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

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D. Waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182

       Gonzalez Blandon next asserts that the BIA and IJ erred when they failed to

consider his application for a § 212(h) waiver of inadmissibility. He contends that

he was statutorily eligible for the § 212(h) waiver because his convictions did not

render him ineligible. He also asserts that he did not need to prove that he was

eligible for a § 212(h) wavier because the Government did not prove that he was

removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). If, however,

this Court requires him to prove eligibility, he asserts that his testimony shows that

he qualifies for this relief.

       An “alien convicted of, or who admits having committed, or who admits

committing acts which constitute the essential elements of” a violation of law

relating to a controlled substance is inadmissible. INA § 212(a)(2)(A)(i)(II), 8

U.S.C. § 1182(a)(2)(A)(i)(II). The Attorney General may exercise his discretion

and grant such an alien a waiver of inadmissibility if the controlled substance

violation related “to a single offense of simple possession of 30 grams or less of

marijuana.” Id. § 212(h), 8 U.S.C. § 1182(h). Under Florida law, it is illegal to

introduce, “take or attempt to take or send or attempt to send therefrom,” a number

of items, including controlled substances, into a state correctional institution. Fla.




                                          8
Stat. § 944.47(1)(a). It is also unlawful for inmates to possess controlled

substances in a state correctional institution. Id. § 944.47(1)(c).

      Gonzalez Blandon did not establish that he was not inadmissible under INA

§ 212, 8 U.S.C. § 1182, because he has been convicted of introducing contraband,

which he testified was marijuana, into a penal institution. See INA § 240(c)(2)(A),

8 U.S.C. § 1229a(c)(2)(A). To be statutorily eligible for a waiver under § 212(h),

Gonzalez Blandon would have had to establish that this violation involved 30

grams or less of marijuana and that it was an offense of simple possession. INA

§ 212(h), 8 U.S.C. § 1182(h). However, Gonzalez Blandon testified that he did

more than merely possess the marijuana, as prohibited by Fla. Stat. § 944.47(1)(c).

Rather, he testified that he brought a package of marijuana inside his prison, as

prohibited by Fla. Stat. § 944.47(1)(a).



E. Asylum, Withholding of Removal or CAT relief

      Finally, Gonzalez Blandon contends that he is eligible for asylum because

he has a well-founded fear of future persecution based on his political opinion and

membership in a social group. The BIA found that he had subjective fear of future

persecution but determined that it was not objectively reasonable. Gonzalez

Blandon contends that court erred because his fear was objectively reasonable,

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based on his family being part of Somoza’s regime, and when that regime fell, its

members were at risk for being arrested, tortured, and killed. He also points to a

pattern or practice of persecution, as shown by the fact that some of his family

members were granted asylum and the fact that one of his brothers was arrested

and threatened by the Sandinistas. He contends that he is eligible for withholding

of removal and CAT relief for the same reasons.

      We lack jurisdiction to consider arguments that an alien failed to

administratively exhaust before the BIA, even if the BIA considered those

arguments sua sponte. Amaya-Artunduaga, 463 F.3d at 1250-51.

      We review the BIA’s legal conclusions de novo. Ayala v. U.S. Att’y Gen.,

605 F.3d 941, 948 (11th Cir. 2010). The BIA’s factual findings are reviewed

under the “highly deferential” substantial evidence test, and we will affirm the

BIA’s decision “if it is supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (quotation omitted). We will

only reverse “when the record compels a reversal.” Id. (quotation omitted).

      An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). To be eligible for asylum, the

applicant must prove that he is a “refugee” within the meaning of the INA. INA

§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). To establish asylum eligibility, the

                                         10
alien must, with specific and credible evidence, establish: (1) past persecution on

account of a statutorily listed factor; or (2) a “well-founded fear” that the

statutorily listed factor, in this case political opinion or membership in a particular

social group, will cause such future persecution. 8 C.F.R. § 208.13(a), (b). In

establishing a well-founded fear of future persecution, the alien must present

“specific, detailed facts showing a good reason to fear that he or she will be

singled out for persecution.” Al Najjar, 257 F.3d at 1287 (quotations omitted).

The alien must demonstrate that his fear “is subjectively genuine and objectively

reasonable.” Id. at 1289. An alien’s fear is objectively reasonable if he “has a

good reason to fear future persecution.” Id. (quotation omitted).

      To qualify for withholding of removal under the INA, an alien must show

that if returned to his country, he would “more likely than not . . . be persecuted or

tortured” based upon a statutorily listed factor. Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1232 (11th Cir. 2005) (quotation omitted). “This is a more stringent

standard than for asylum,” and an alien who is unable to establish that he is

eligible for asylum “is generally precluded from qualifying” for withholding of

removal. Id. at 1232-33.

      Substantial evidence supports the BIA’s finding that Gonzalez Blandon was

not eligible for asylum. There was no evidence of past persecution, and there is

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“reasonable, substantial, and probative evidence” that Gonzalez Blandon did not

have an objectively reasonable, well-founded fear of future persecution. Al

Najjar, 257 F.3d at 1284 (quotation omitted). Gonzalez Blandon testified that he

was not aware of any person or group in Nicaragua that would seek to harm him if

he returned to the country, and his mother testified that she had returned to

Nicaragua twice in the four years prior to the hearing. Based on this testimony,

the BIA reasonably found that Gonzalez Blandon had not established that he had

an objectively reasonable, well-founded fear of future persecution.

      Next, because Gonzalez Blandon is unable to establish that he was eligible

for asylum, he is unable to meet the “more stringent standard” for withholding of

removal that he would “more likely than not . . . be persecuted or tortured” if he

returned to Nicaragua. Sepulveda, 401 F.3d at 1232-33. Finally, we do not have

jurisdiction to consider Gonzalez Blandon’s claim that he is eligible for CAT relief

because he failed to exhaust this claim by not raising it before the BIA. See

Amaya-Artunduaga, 463 F.3d at 1250. It is of no moment that the BIA considered

this claim sua sponte. See id. at 1250-51.

      Based on the above, we deny Gonzalez Blandon’s petition for review as to

his claims that: (1) the BIA applied the wrong burdens of proof; (2) the BIA

erroneously sustained the charge of removability under INA § 237(a)(2)(B)(i), 8

                                         12
U.S.C. § 1227(a)(2)(B)(i); (3) he was statutorily eligible for a § 212(h) waiver;

(4) the BIA erroneously found him ineligible for asylum; and (5) the BIA

erroneously found him ineligible for withholding of removal. We dismiss

Gonzalez Blandon’s petition for review as to his due process claims and as to his

claim that the BIA erroneously found him ineligible for CAT relief.

      PETITION DENIED IN PART, DISMISSED IN PART.




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