IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60560

Summary Calendar

JOSUE DAVID CRUZ,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A070 883 216

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Josue David Cruz, a native and citizen of Honduras, conceded

removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien convicted of a

controlled substance offense, and under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien

present in the United States without being admitted or paroled. He applied for

withholding of removal under 8 C.F.R. § 208.16(b) and 8 U.S.C. § 1101(a)(42)(A),

based on past persecution. Cruz petitions for review of the Board of Immigration

Appeals’ (BIA) de novo dismissal of his appeal from the Immigration Judge’s (IJ)

order denying his application (he was, however, granted voluntary departure).

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2010

Lyle W. Cayce

Clerk

 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: 09-60560 Document: 00511258705 Page: 1 Date Filed: 10/08/2010
No. 09-60560

Pursuant to 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to review

Cruz’ claim for withholding of removal. That section states: “no court shall have

jurisdiction to review any final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in 8 U.S.C.

§ 1182(a)(2) . . . .” Section 1182(a)(2) provides: “any alien convicted of, or who

admits having committed . . . (II) a violation of any law or regulation of a State

. . . [or] the United States . . . relating to a controlled substance (as defined in [21

U.S.C. § 802]) is inadmissible”. An exception, however, mandates this court

retain jurisdiction for review of “constitutional claims or questions of law” raised

in a petition for review filed in an appropriate court of appeals. 8 U.S.C.

§ 1252(a)(2)(D); see Arce-Vences v. Mukasey, 512 F.3d 167, 170 (5th Cir. 2007).

That an alien is not eligible for asylum or withholding of removal are

findings of fact reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d

339, 344-45 (5th Cir. 2005). “We do, of course, also have jurisdiction to

determine our own jurisdiction.” Marquez-Marquez v. Gonzales, 455 F.3d 548,

554 (5th Cir. 2006). “We review de novo questions relating to our jurisdiction to

consider challenges to a final order of the BIA.” Solorzano-Moreno v. Mukasey,

296 F. App’x 391, 393 (5th Cir. 2008) (citing Balogun v. Ashcroft, 270 F.3d 274,

277 (5th Cir. 2001)).

Cruz contends he has shown entitlement to withholding of removal

because he suffered past persecution by gangs in Honduras and he is in danger

of future persecution by gangs if removed there. In short, his contentions

constitute a disagreement with the factual determinations of the IJ and BIA. In

other words, his petition does not raise any constitutional claims or questions of

law. Accordingly, we lack jurisdiction to review the final order of removal. See

Zhang, 432 F.3d at 344; Alwan v. Ashcroft, 388 F.3d 507, 515 (5th Cir. 2004).

DISMISSED.

2

Case: 09-60560 Document: 00511258705 Page: 2 Date Filed: 10/08/2010