Case: 18-12212 Date Filed: 02/28/2019 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-12212 Non-Argument Calendar ________________________ Agency No. A087-187-598 FRANCISCO NUNES DE SALES, a.k.a. Francisco Nunes, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (February 28, 2019) Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges. PER CURIAM: Francisco Nunes De Sales seeks review of the decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order finding him removable for procuring an adjustment of status by fraud, pursuant to Case: 18-12212 Date Filed: 02/28/2019 Page: 2 of 7 the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(A). De Sales argues that: (1) the IJ and BIA violated his due process rights by allowing the sworn statement of his ex-wife into evidence without bringing her as a witness so he could cross-examine her; and (2) the BIA did not have substantial evidence drawn from the record to support his removal. After thorough review, we deny the petition. Generally, we review the BIA’s decision as the final agency decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). However, where the BIA adopts the IJ’s reasoning, we also review the decision of the IJ to the extent of that agreement. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo constitutional challenges, including due process violations. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per curiam). We review factual determinations, including findings of removability, for substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004). Under the substantial evidence test, we view the record in the light most favorable to the agency’s decision, drawing all reasonable inferences in favor of that decision. Id. at 1027. Accordingly, we must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. Put differently, the decision of the BIA and IJ can only be reversed if the evidence compels a reasonable fact finder to find otherwise. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2008) (per curiam). 2 Case: 18-12212 Date Filed: 02/28/2019 Page: 3 of 7 First, we are unpersuaded by De Sales’s due process claim. Petitioners in removal proceedings are entitled to Fifth Amendment protections to assure that they are “given notice and an opportunity to be heard.” Lapaix, 605 F.3d at 1143. To prove a due process violation, the petitioner must show that he was “deprived of liberty without due process of law and that the purported errors caused [him] substantial prejudice.” Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011) (per curiam) (quotations omitted). To establish substantial prejudice, the petitioner must show that, “in the absence of the alleged violations, the outcome of the proceeding would have been different.” Id. (quotations omitted). ...
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