                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 APR 9, 2010
                               No. 09-15039                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                          Agency No. A089-623-707

HECTOR DARIO PALAEZ,


                                                                        Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                         ________________________

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

                                (April 9, 2010)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Petitioner Hector Dario Palaez, through counsel, seeks review of the Board
of Immigration Appeals’ (“BIA”) refusal to reconsider the denial of his

adjustment-of-status application.1 He argues that the BIA erred by refusing to

reconsider its denial of his adjustment-of-status application in the exercise of

discretion, because the immigration judge (“IJ”) denied relief on other grounds and

Palaez did not receive a full hearing on the merits of his application. He also

argues that the BIA abused its discretion by refusing to reconsider its alternative

finding that he was ineligible to adjust his status under the Cuban Adjustment Act

(“CAA”), Pub. L. No. 89-732, 80 Stat. 1161 (1966). We DENY his petition.

                                     I. BACKGROUND

       Palaez, a native and citizen of Colombia, was admitted into the United States

at Miami, Florida, in 1999, as a nonimmigrant visitor with authorization to remain

in the United States until 21 October 1999. AR at 247. The Department of

Homeland Security (“DHS”) served him with a Notice to Appear (“NTA”) in

January 2008. Id. at 248. The NTA charged him with removability under INA

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as a nonimmigrant who remained in the

United States for a time longer than permitted. Id. at 249.

       Palaez appeared before an immigration judge (“IJ”) with counsel, admitted

the allegations in the NTA, and conceded that he was removable as charged. Id. at



       1
        Though it appears that the correct spelling of the petitioner’s surname is “Pelaez,” we refer
to him here as “Palaez,” consistent with other court documents.
                                                  2
112-13. He indicated his intent to apply for adjustment of status under the CAA,

Pub. L. No. 89-732, 80 Stat. 1161 (1966), based on the status of his current wife.

Id. at 113-14. He submitted a copy of a Form I-485 application for adjustment of

status. Id. at 209-12. He admitted on his application that he had a prior criminal

conviction, but denied having been deported or removed. Id. at 211. He also

denied seeking to procure an immigration benefit by fraud. Id.

      The DHS submitted a number of documents to rebut Palaez’s eligibility

claim, including: (1) a state criminal case report, id. at 176-78; (2) a 2005 I-130

petition filed by Palaez’s current wife, which represented that Palaez had never

been in removal proceedings, id. at 179-80; (3) a copy of the Form I-485 that

Palaez actually filed with immigration officials in 2006, which represented that he

had no prior criminal convictions, id. at 182-85; (4) a 1994 deportation order

against Palaez, in which the IJ noted that he failed to appear at a deportation

hearing and found him removable as a nonimmigrant visitor who stayed in the

United States for a time longer than permitted, id. at 186-88; (5) documents

showing that Palaez filed a Form I-485 application for adjustment of status in 1991

and his former wife filed an I-130 petition, and that immigration officials denied

the petition in 1993 based on a finding that the marriage was a sham or fraudulent

marriage that could not convey immigration benefits, id. at 189-203; and (6) a

1985 order to show cause, reflecting that Palaez was an immigrant who remained
                                           3
for longer than permitted, id. at 205-06.

      Counsel for Palaez indicated that he failed to disclose the information

reflected in the government’s submission, including his use of two prior alien

numbers and his having been under an order of removal. Id. at 137-38. As to

criminal history, counsel represented that Palaez only told her that he was involved

in a traffic accident while he had a suspended license but was not arrested, and that

he never mentioned a worthless check conviction. Id. at 139-40. Counsel

indicated that Palaez alternatively would seek voluntary departure. Id. at 141.

      Palaez first came to the United States in 1983; he admitted that he

overstayed his visa and was placed in removal proceedings, and that he left the

country rather than appear at a removal hearing. Id. at 151-54. He returned to the

United States with a student visa and married an American citizen who petitioned

for him to become a permanent resident, though immigration officials found that

this marriage was a sham. Id. at 154-55. He got a divorce and returned to

Colombia and never attended a removal hearing about the matter. Id. at 154.

Palaez reentered the United States a third time with a visa and he admitted that he

never disclosed his immigration history on his visa applications. Id. at 156. While

in the United States, Palaez pled guilty to driving under the influence in 1999 and

was arrested for driving without a license in 2003. Id. at 149-151.

      When confronted with the instant I-130 petition that did not disclose his
                                            4
prior marriage, Palaez claimed that he did, in fact, disclose it. Id. at 157-58. He

admitted that the Form I-130 also indicated that he was not involved in any prior

removal proceedings, although he claimed he told an immigration officer that he

did not remember if he ever was deported, and he admitted that he checked a box

representing that he had no prior arrests. Id. at 158-62.

      The IJ issued an oral decision finding that (1) Palaez was not eligible to seek

adjustment of status under the CAA because his current wife adjusted her status

under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”),

Pub. L. 105-100, 8 U.S.C. § 1101 (1997), (2) he was ineligible for adjustment

under NACARA because there was no visa number available to him, and (3) in any

event, he was ineligible for any type of status adjustment under the INA because he

previously entered into a fraudulent marriage. Id. at 103-04. The IJ did not deny

Palaez’s application for adjustment of status as a matter of discretion.

      The IJ also denied Palaez’s request for voluntary departure, finding that he

did not demonstrate an ability to post the bond, and, as a matter of discretion, he

did not deserve voluntary departure based on his evasive demeanor and lack of

candor in describing his immigration history and criminal record. Id. at 104-08.

Accordingly, the IJ ordered him removed to Colombia. Id. at 108-09.

      Palaez, through substitute counsel, administratively appealed to the BIA,

arguing that the IJ erred by finding that he was ineligible for adjustment under the
                                           5
CAA. Id. at 95. He also argued that, because his current wife was a Cuban citizen

and national admitted to the United States after January 1, 1959 and who had

resided in the United States for more than one year, he was eligible for adjustment

of status under the CAA even though she adjusted her status under NACARA. Id.

at 63-66. Palaez did not challenge the IJ’s other findings, including that he was

ineligible for any status adjustment based on his prior fraudulent marriage, or the

IJ’s denial of voluntary departure as a matter of discretion. See id. at 61-67.

       The BIA dismissed Palaez’s appeal in July 2009, finding that Palaez was

ineligible for relief under the CAA because his current wife adjusted her status

under NACARA and not the CAA, and that he was ineligible for an adjustment of

status under NACARA because he had engaged in marriage fraud and because

there was no visa number available to him. Id. at 25-26. Alternatively, it denied

adjustment of status as a matter of discretion, based on based on Palaez’s criminal

history and “flagrant disregard” of immigration laws. Id. at 26. The BIA also

affirmed the IJ’s discretionary denial of voluntary departure, noting that Palaez did

not challenge this finding in his appeal. Id.

       Palaez did not petition us for review of the BIA’s July 2009 order of

dismissal.2 Instead, in August 2009, Palaez filed a motion for reconsideration with

       2
       Accordingly, we lack jurisdiction to consider any arguments pertaining to the BIA’s July
2009 denial of Palaez’s application for an adjustment of status. See Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1350-51 (11th Cir. 2005) (per curiam) (noting that the filing of a motion to
                                                 6
the BIA, arguing that it failed to address his arguments regarding his eligibility for

adjustment under the CAA and that it improperly denied his application as a matter

of discretion because the IJ did not reach that issue. Id. at 14-16.

       The BIA denied Palaez’s motion for reconsideration on 23 September 2009,

rejecting his claim that he was eligible for adjustment of status under the CAA and

reiterating its prior order. Id. at 6. It also rejected his challenge to its alternative

denial of his application as a matter of discretion. Id.

       Palaez filed a petition for review with us on 6 October 2009. On appeal, he

argues that, because the IJ denied relief on other grounds and he did not receive a

full hearing on the merits of his application, the BIA erred as a matter of law and

may have violated his right to due process by refusing to reconsider his application

in the exercise of discretion. He also argues that the BIA erred in refusing to

reconsider its denial of his application for status adjustment under the CAA.

                                       II. DISCUSSION

       We review the BIA’s denial of a motion for reconsideration for abuse of

discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per

curiam). We review constitutional challenges de novo. Id. We also review our

subject matter jurisdiction de novo. Id.

       An alien may file a motion to reconsider before the immigration officer or

reconsider does not affect the finality of the underlying order).
                                                  7
court or the BIA within 30 days of the entry of the removal order, for review of

claimed errors in the law or facts. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R.

§§ 103.5(a)(3), 1003.2(b), and 1003.23(b)(2). “A motion to reconsider shall state

the reasons for the motion by specifying the errors of fact or law in the prior Board

decision and shall be supported by pertinent authority.” 8 C.F.R. 1003.2(b)(1).

      The Immigration and Naturalization Act (“INA”) allows the Attorney

General, “in his discretion and under such regulations as he may prescribe,” to

adjust an alien’s status to lawful permanent resident if “(1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to him at the time his application is filed.”

INA § 245(a), 8 U.S.C. § 1255(a).

      Though the INA “precludes appellate review of discretionary decisions

[including the discretionary denial of an application for adjustment of status, it]

does not preclude review of non-discretionary legal decisions that pertain to

statutory eligibility for discretionary relief.” Gonzalez-Oropeza v. U.S. Att’y Gen.,

321 F.3d 1331, 1332 (11th Cir. 2007) (per curiam) (citing INA § 242(a)(2)(B), 8

U.S.C. § 1252(a)(2)(B)). In addition, “we retain jurisdiction to review

‘constitutional claims or questions of law raised upon a petition for review.’”

Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1259 (11th Cir. 2009) (quoting INA
                                           8
§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)), cert. denied, ___ U.S. ___, ___ S. Ct.

___, 2010 W.L. 757697 (Mar. 8, 2010) (No. 09-263).

      “[T]he Fifth Amendment entitles aliens to due process of law in deportation

proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449, 123

L.Ed.2d 1 (1993). Accordingly, aliens must receive “notice and an opportunity to

be heard in their removal proceedings.” Fernandez-Bernal v. Att’y Gen. of the

U.S., 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). To prevail on a due process

challenge, an alien must show substantial prejudice – that is, that the outcome

would have differed “in the absence of the alleged procedural deficiencies.” Patel

v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003).

      Palaez argues that the BIA erred by refusing to reconsider its denial of his

adjustment-of-status application as a matter of discretion, because the IJ did not

deny relief on this basis and because he was accordingly unable to argue the merits

of his claim and to present “offsetting factors” during his hearing before the IJ.

Appellant’s Brief at 13-14. Even so, he admits that his statutory eligibility for a

status adjustment was before the IJ and that proving his eligibility in this regard

“necessarily would include [the exposition of] positive factors.” Id. at 14. Palaez

does not expressly mention “due process” in his issue statement, summary of

argument, or substantive discussion of this claim. See id. at 1, 7-14.

      Even assuming that Palaez implicitly raises a due process challenge by
                                           9
contesting the BIA’s ruling in light of alleged procedural deficiencies during his

hearing before the IJ, this claim lacks merit. Cf. Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1228 n.2. (11th Cir. 2005) (per curiam). Palaez received “notice and an

opportunity to be heard” on the merits of his adjustment of status application when

he presented written evidence related to this issue and testified before the IJ in this

regard at his removal hearing. See AR at 209-34, 144-62; Fernandez-Bernal, 257

F.3d at 1310 n.8. While Palaez argues that he would have presented additional

evidence of “positive” and “offsetting” factors if he had realized that discretionary

relief was a possibility, he has failed to demonstrate resulting prejudice because he

has provided no details about the contents of such documents or testimony and no

explanation of how this new evidence would have affected the outcome. See Patel,

334 F.3d at 1263. Thus, even though the IJ did not deny Palaez’s application as a

matter of discretion, the BIA’s decision to do so did not violate his right to due

process. Cf. 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions of law,

discretion, and judgment . . . in appeals from decisions of immigration judges de

novo.”). Accordingly, it did not abuse its discretion by denying reconsideration on

this basis, and we deny Palaez’s petition in this respect.

      Palaez also argues that he was eligible for adjustment of status under the

CAA despite his Cuban wife’s adjustment under NACARA, and that the BIA erred

by failing to address this claim when it denied his motion for reconsideration.
                                           10
Appellant’s Brief at 8-12. Because Palaez failed to identify a valid legal or

constitutional challenge to the BIA’s refusal to reconsider its denial of his

adjustment-of-status application as a matter of discretion, we need not consider his

challenge to the BIA’s refusal to reconsider its alternative finding. See Gonzalez-

Oropeza, 321 F.3d at 1332.

                                III. CONCLUSION

      Palaez appeals the BIA’s refusal to reconsider its denial of his application to

adjust his status. We hold that the BIA did not abuse its discretion in refusing to

reconsider and that this denial did not deprive Palaez of due process. Based on a

review of the record and the parties’ briefs, we deny Palaez’s petition.

      PETITION DENIED.




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