     Case: 17-60074       Document: 00514321684         Page: 1     Date Filed: 01/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                     No. 17-60074
                                                                                     Fifth Circuit

                                                                                   FILED
                                   Summary Calendar                         January 25, 2018
                                                                              Lyle W. Cayce
JOSE LUIS PINEDA, also known as Marcelo Pineda,                                    Clerk

                                                  Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                  Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A090 965 802


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Luis Pineda, a native and citizen of Mexico who obtained lawful
permanent resident status in 1992, seeks review of the Board of Immigration
Appeals’ decision upholding an order for his removal, contending: (1) 18 U.S.C.
§ 16(b) (definition of crime of violence) is unconstitutionally vague; and (2) he
was denied due process because his withholding-of-removal claim was denied
before he filed an application for that relief.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-60074     Document: 00514321684      Page: 2    Date Filed: 01/25/2018


                                  No. 17-60074

      Our court generally lacks jurisdiction to review a removal order against an
alien who, like Pineda, is removable based on the commission of an aggravated
felony. 8 U.S.C. § 1252(a)(2)(C); Arce-Vences v. Mukasey, 512 F.3d 167, 170 (5th
Cir. 2007). We may review, however, constitutional claims and questions of law
raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D); Arce-Vences, 512 F.3d at
170. We therefore have jurisdiction to consider both of Pineda’s claims, each of
which is reviewed de novo. Diaz-Esparza v. Sessions, 697 F. App’x 338, 339 (5th
Cir. 2017) (§ 16(b) challenge); Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)
(due process).
      First, as Pineda concedes, his challenge to the constitutionality of 18 U.S.C.
§ 16(b) is foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th
Cir.) (en banc), petition for cert. filed (29 Sept. 2016) (No. 16-6259), which held
“§ 16(b) is not unconstitutionally vague”. E.g., United States v. Alcantar, 733 F.3d
143, 145–46 (5th Cir. 2013) (“only an intervening change in the law . . . permits a
subsequent panel to decline to follow a prior Fifth Circuit precedent”). He is
therefore removable and ineligible for asylum based on his conviction for an
aggravated felony. 8 U.S.C. §§ 1158(b)(2)(B)(i) & 1227(a)(2)(A)(iii).
      Second, to establish a due-process violation, Pineda must make “an initial
showing of substantial prejudice”. Anwar, 116 F.3d at 144 (citing Howard v. INS,
930 F.2d 432, 436 (5th Cir. 1991)). Pineda cannot show substantial prejudice
without making a prima facie showing that he was eligible for withholding of
removal. See id.; Tariq v. Holder, 537 F. App’x 494, 496 (5th Cir. 2013). He has
forfeited the due-process claim by failing to brief whether he would have
demonstrated eligibility for such relief had he filed an I-589 application. E.g.,
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Anwar, 116 F.3d at 144.
      DENIED.




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