Jose Pineda v. Jefferson Sessions, III

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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