Case: 13-14469   Date Filed: 03/13/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14469
                        Non-Argument Calendar
                      ________________________

                       Agency No. A042-497-459



JUSTE THEODAL CADET,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (March 13, 2015)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Juste Theodal Cadet, a native and citizen of Haiti, petitions pro se for review

of a decision affirming an order to remove him from the United States. The Board

of Immigration Appeals agreed with the findings of the immigration judge that

Cadet was statutorily ineligible for asylum and withholding of removal. Cadet

argues that the immigration judge violated his right to due process by denying his

request for a hearing to determine whether his three drug convictions in a Florida

court qualified as aggravated felonies under the Immigration and Nationality Act;

that his convictions for possession of cocaine are not aggravated felonies that make

him ineligible for asylum; and that his offenses are not “particularly serious

crimes” that make him ineligible for withholding of removal. We deny in part and

dismiss in part Cadet’s petition.

      The immigration judge did not violate Cadet’s right to due process. To

establish a violation of due process, an alien must prove that he was deprived of

liberty without notice or an opportunity to respond and that he was substantially

prejudiced by the alleged error. See Lapaix v. U.S. Att’y Gen., 

, 1144

(11th Cir. 2010). Cadet was notified that he was being removed based on his three

prior drug convictions, and during his master calendar hearing, Cadet argued that

“none of the charges were aggravated felonies.” Cadet asked for a hearing to

determine the character of the offenses, but the immigration judge explained that a

hearing was unnecessary because Cadet admitted to the facts in his records of


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conviction, which established that his drug offenses were aggravated felonies. And

Cadet was not prejudiced by the denial of a hearing because it would not have

changed the outcome of his removal proceedings.

      Cadet’s drug offenses are aggravated felonies, which make him ineligible for

asylum. An alien commits an aggravated felony if he engages in “illicit trafficking

in a controlled substance” by committing “a drug trafficking crime” prohibited in

section 924(c) of Title 18. 8 U.S.C. § 1101(a)(43)(B). A drug trafficking crime is

defined broadly as “any felony punishable under the Controlled Substances Act,”

18 U.S.C. § 924(c)(2), and includes the offense of “knowingly or intentionally . . .

possess[ing] with intent to manufacture, distribute, or dispense, a controlled

substance,” 21 U.S.C. § 841(a). In 1998 and 2000, Cadet was convicted of the

Florida analogue to section 841(a)(1). See Fla. Stat. § 893.13(1)(a) (amended

2002); Donawa v. U.S. Att’y Gen., 

, 1281 (11th Cir. 2013). Cadet

argues that his offenses do not qualify as trafficking under Florida law because of

the small quantities of cocaine that he possessed, but “an offense . . . counts . . . as

‘illicit trafficking’” so long as it is a felony under the Act, Lopez v. Gonzales, 

, 55, 

, 630–31 (2006). And the Act punishes as a felony the

offense of knowingly possessing an indeterminate amount of cocaine. See 21

U.S.C. §§ 802(44), 812(c), 841(a)(1), 841(b)(1)(C); United States v. Sanders, 668




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, 1309 (11th Cir. 2012). Because his convictions established that Cadet

knowingly possessed a quantity of cocaine, his offenses are aggravated felonies.

      We lack jurisdiction to review the denial of Cadet’s petition for withholding

of removal. An alien convicted of a “particularly serious crime” is statutorily

ineligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(B)(ii). The Attorney

General has discretion to determine whether an alien, like Cadet, who has been

convicted of aggravated felonies and received a sentence of less than five years of

imprisonment, has committed a “particularly serious crime.” Id.; 

. Cadet argues that his drug offenses were not “particularly serious,” but

that discretionary determination is shielded from judicial review. 8 U.S.C.

§ 1252(a)(2)(B)(ii), (a)(2)(C). We dismiss this part of Cadet’s petition.

      PETITION DENIED IN PART, DISMISSED IN PART.




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