Lozano v. Garland ( 2022 )

Case: 21-60742 Document: 00516488302 Page: 1 Date Filed: 09/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-60742 September 28, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Norma Luz Lozano,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A028 862 460
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Norma Luz Lozano, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing her appeal
from an order of the Immigration Judge (IJ) sustaining the charge of
removability against her and denying her application for cancellation of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-60742 Document: 00516488302 Page: 2 Date Filed: 09/28/2022
No. 21-60742
removal under 8 U.S.C. § 1229b(a). She claims: the IJ and BIA erred by
failing to follow the proper procedure in evaluating her application for
cancellation of removal; and her due-process rights were violated when the
IJ considered information not included in her Notice to Appear (NTA) when
making his removability decision.
Regarding her claim concerning cancellation of removal, our court
lacks jurisdiction to review a denial of discretionary relief, including relief
under § 1229b, except with respect to constitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1622–
23 (2022). Jurisdiction is, of course, reviewed de novo. Nehme v. INS, 252
F.3d 415, 420 (5th Cir. 2001).
Along that line, Lozano’s contention a particular inference should
have been made about her state of mind during a drug-trafficking incident is
a factual question; therefore, our court lacks jurisdiction to review the
contention. Patel, 142 S. Ct. at 1623 (petitioner “may not bring a factual
challenge to orders denying discretionary relief” under § 1252(a)(2)(B)).
Her claim the IJ and BIA failed to properly consider and weigh certain factors
in their equity evaluations likewise does not present a constitutional claim or
question of law. E.g., Nastase v. Barr, 964 F.3d 313, 319–20 (5th Cir. 2020)
(no jurisdiction to review BIA’s weight of equities or failure to consider
certain facts).
Lozano’s due-process claim is also reviewed de novo. E.g., Santos-
Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020). In removal proceedings,
“due process requires that an alien be provided notice of the charges against
[her], a hearing before an executive or administrative tribunal, and a fair
opportunity to be heard”. Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir.
2018). To prevail, Lozano must “make an initial showing of substantial
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Case: 21-60742 Document: 00516488302 Page: 3 Date Filed: 09/28/2022
No. 21-60742
prejudice” which requires “a prima facie showing that the alleged violation
affected the outcome of the proceedings”. Id.Lozano contends the IJ’s considering information, not included in her
NTA, about her alleged involvement in certain drug-trafficking events
resulted in her lacking notice of the charges she faced. The record, however,
shows: the relevant supplementary exhibits were introduced at an initial
hearing; and Lozano’s counsel conceded her removability based on the
exhibits. Accordingly, the record does not support Lozano’s contention she
lacked notice of the allegations against her.
In the alternative, she also cannot make the requisite initial showing
of substantial prejudice. A concession by counsel is binding in the absence of
“egregious circumstances”, which Lozano has not alleged. Zhong Qin Yang
v. Holder, 570 F. App’x 381, 383 (5th Cir. 2014) (quoting Matter of Velasquez,
19 I. & N. Dec. 377, 382 (BIA 1986)). As noted, Lozano’s counsel conceded
her removability on the grounds alleged in the NTA. She has not challenged
this concession in our court. Because those grounds were enough to find her
removable, she fails to make a prima facie showing the outcome of the
proceedings would have been different but for the alleged violation. E.g.,
Okpala, 908 F.3d at 971.
DISMISSED in part; DENIED in part.
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