                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                           No. 11-12511                DECEMBER 19, 2011
                       Non-Argument Calendar               JOHN LEY
                     ________________________               CLERK

                       Agency No. A094-858-632



OSTILIO PAGUADA,,

                                                                 Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,
                                          l
                                                               Respondent.

                     ________________________

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

                          (December 19, 2011)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
       Ostilio Paguada, a native and citizen of Honduras, seeks review of the

Board of Immigration Appeals’s (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) denial of his application for withholding of removal under the

Immigration and Nationality Act. Paguada was initially charged as inadmissible

under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who had not been admitted or

paroled. Subsequently, the government added a second charge of removability

under 8 U.S.C. § 1182(a)(2)(A)(i)(II), for being an alien who was convicted of a

controlled substance offense. Paguada was found removable on both grounds and

sought, as a form of relief, withholding of removal1 on the basis that, as a person

with HIV/AIDS, he fears that he will be persecuted in Honduras.

       In his petition for review, Paguada raises the same two claims that he raised

before the BIA, and which the BIA denied. First, he argues that his right to due

process under the Fifth Amendment was violated during the immigration court

hearing because comments between witnesses, the government, and the IJ were

not completely and simultaneously translated. Second, Paguada argues that, based

on the record evidence, the BIA erred in determining that he had not established

that it was more likely than not that he would be persecuted on account of his HIV



       1
         Paguada also sought asylum and relief under the United Nations Convention Against
Torture, both claims which were denied and are not at issue in this appeal.

                                              2
status should he be removed to Honduras.

       When examining a petition for review, “we must first consider whether we

have subject matter jurisdiction to hear the petition at all.” Resendiz-Alcaraz v.

U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). We review subject matter

jurisdiction de novo. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332

(11th Cir. 2003). Because the IJ found Paguada removable, in part, based on his

conviction of a controlled-substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II),

we only have jurisdiction to review his petition to the extent that he raises

constitutional claims and questions of law. See Garces v. U.S. Att’y Gen., 611

F.3d 1337, 1343-44 (11th Cir. 2010) (no jurisdiction to review a final order of

removal when an alien is removable for having committed an offense involving a

controlled substance);2 but see 8 U.S.C. § 1252(a)(2)(D) (“Nothing in

subparagraph (B) or (C), . . . which limits or eliminates judicial review, shall be

construed as precluding review of constitutional claims or questions of law.”).

       Accordingly, we are without jurisdiction to review Paguada’s claim that the

BIA erred in determining, based on the record, that he failed to establish that it is

more likely than not that he will be persecuted in Honduras based on his HIV



       2
         Although the IJ did grant Paguada’s application for voluntary departure, she also entered
an alternate order of removal, thereby raising the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C).

                                                3
status. Whether Paguada has established that it is more likely than not that he will

be persecuted for purposes of withholding of removal is a factual determination,

see Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002), not one that

raises a constitutional claim or question of law, and therefore is not reviewable in

this case where Paguada is removable for having committed a controlled substance

offense. See 8 U.S.C. § 1252(a)(2)(C), (D).

      Paguada’s due process claim is, however, a constitutional claim for which

we retain jurisdiction to review de novo. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808

(11th Cir. 2006). “To establish due process violations in removal proceedings,

aliens must show that they were deprived of liberty without due process of law,

and that the asserted errors caused them substantial prejudice.” Lonyem v. U.S.

Att’y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003). To establish substantial

prejudice, an alien must show that the outcome of their proceeding would have

been different but for the due process violation. See Patel v. U.S. Att’y Gen., 334

F.3d 1259, 1263 (11th Cir. 2003).

      Even if we agree with Paguada that parts of the immigration court hearing

were not translated completely and simultaneously, we still must deny his claim

because he has failed to show that any translation deficiency caused him

substantial prejudice. Other than generalized statements in his brief that he has a

                                          4
right to a fair hearing and should be allowed to create a full record, Paguada fails

to show how the outcome of his removal proceeding would have been different,

but for the deficiencies he alleges.

      PETITION DISMISSED, in part, and DENIED, in part.




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