NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2010
Decided February 7, 2011
Before
RICHARD A. POSNER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 10‐1886
ROMEO MINGA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A045‐323‐612
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Romeo Minga tried to convince an immigration judge to cancel his removal from the
United States, but his lengthy criminal record proved too damaging to overcome, and the IJ
denied his application. Certain that his previous lawyer is to blame for the adverse ruling,
Minga argues in this petition for review that the Board of Immigration Appeals abused its
discretion by refusing to remand his case to the IJ for reconsideration. But because Minga is
removable for drug and gun convictions, we do not have subject‐matter jurisdiction to
review the Board’s decision.
In July 1996, when Minga was 16 years old, he left Albania to start a new life in the
United States as a “diversity immigrant.” See
8 U.S.C. § 1153(c). Accompanied by his
parents and two sisters, he settled in Fort Wayne, Indiana, and ultimately found work
No. 10‐1886 Page 2
installing flooring. Throughout this time he also was assembling an extensive rap sheet.
Between December 2000 and December 2008 he was arrested 14 times and convicted of 12
crimes, including possession of a controlled substance, carrying a handgun without a
license, resisting law enforcement, battery, disorderly conduct, invasion of privacy, and
operating a vehicle while intoxicated. In April 2009 the Department of Homeland Security
charged that his drug and gun convictions rendered him removable. See
id.
§ 1227(a)(2)(B)(i), (C).
Conceding that he is removable, Minga applied for cancellation and argued that he
deserved a second chance. See 8 U.S.C. § 1229b(a). At a hearing he promised the IJ that he
was a changed man with plans to return to school. He explained that he wanted to open up
his own flooring business; indeed, his priest reported that Minga had installed carpet for
free in 15 apartments that the church makes available to newly arrived Albanian
immigrants. His entire family lives in the United States, Minga said, and if he is forced to
build a new life in Albania, he would not even “know where to start.” Minga’s parents
described the monetary and emotional support he had given them over the years and
lamented that removing their son would devastate the family. In addition Minga’s lawyer
submitted evidence of the significant role that a son plays in Albania’s patriarchal culture,
as well as evidence that Albania is among the poorest countries in Europe and suffers a high
rate of unemployment.
As for his lengthy criminal history, Minga and his family pinned the blame squarely
on Katrina Adams, an American citizen whom Minga started dating in November 1999.
The IJ described their four‐year relationship as “stormy”; Minga chalked that up to Adams’s
scheming and duplicity. He recounted their frequent fights and recalled that Adams liked
to drink and “party” but was not interested in working. His father claimed that Minga’s
legal woes began because Adams “taught him the wrong kind of behavior.” Minga’s sister
insisted that he took up drugs and alcohol only to relieve the frustration and stress that
Adams wrought upon him. And although Minga and Adams split sometime in 2003, the
couple continued to clash over how to raise their two young children.
The IJ acknowledged the “particularly poignant” pleas of Minga’s family but
nevertheless exercised his discretion to deny Minga’s application for cancellation of
removal. The IJ lamented that Minga’s conduct had passed the point of giving him another
chance; despite receiving notice “over and over again, at least 14 times here, that his
conduct was in serious conflict with minimal social standards in the United States, he has
failed to conform his conduct to the requirements of our criminal laws.” Minga’s
tumultuous relationship with Adams did not excuse his criminal behavior, the IJ reasoned,
and it would be no reassurance even if she were the cause of his problems because she
No. 10‐1886 Page 3
would continue to play a significant part in his life as the mother of his children. The IJ
could identify no evidence that Minga had learned from his past mistakes and thus lacked
confidence that Minga would “be able to change his behavior” as he had promised. Despite
the possible damage to Minga’s family and the unfortunate circumstances Minga would
encounter back in Albania, the IJ felt “constrained by what is best for this country” to order
him removed.
Minga’s lawyer filed a notice of appeal with the Board of Immigration Appeals but
neglected to submit a timely brief. Instead, about a month after the deadline had passed,
Minga fired that lawyer and submitted a pro se “motion to reopen” in light of counsel’s
allegedly deficient performance. In a memorandum accompanying the motion, Minga
described evidence that he said former counsel ought to have submitted to the IJ. In
particular he insisted that counsel should have submitted evidence that he paid his taxes
and fulfilled his child‐support obligations. Minga also contended that counsel should have
bolstered his mother’s testimony about her heart condition with medical records. And he
faulted counsel because the record did not reveal why Minga had failed to complete an
alcohol‐abuse program he was required to attend while on probation in 2008.
Although the Board never explicitly said so, apparently it construed Minga’s pro se
motion to reopen as a motion to remand, consolidated the motion with the pending appeal,
and then resolved both matters in a single order. See
8 C.F.R. § 1003.2(c)(4). The Board
dismissed Minga’s appeal after finding no clear error in the IJ’s factual findings and, as an
exercise of its discretion, agreeing with the IJ that Minga did not merit cancellation of
removal. As to the motion to remand, the Board noted that Minga had not filed a complaint
about counsel’s performance with the appropriate disciplinary authorities, as required by
Matter of Lozada,
19 I. & N. Dec. 637, 639 (BIA 1988). But even if Minga had complied with
Lozada, the Board added, his motion to remand would still be denied because he did not
present any evidence that counsel’s alleged deficiencies could have affected the outcome of
his hearing.
Because the Board issued its own written analysis of Minga’s case, we review only
the Board’s order. See Kone v. Holder,
620 F.3d 760, 763 (7th Cir. 2010). Minga’s petition
presents for review two distinct decisions by the Board. In its final order of removal, the
Board both rejected Minga’s application for cancellation of removal and denied his pro se
motion to reopen, which it deemed a motion to remand. Minga, though, does not contest
the Board’s rejection of his application for cancellation of removal, and in any event that
determination is beyond the scope of our jurisdiction. See
8 U.S.C. § 1252(a)(2)(B)(i).
No. 10‐1886 Page 4
So is the Board’s denial of Minga’s motion to remand. As the government points
out,
8 U.S.C. § 1252(a)(2)(C) strips this court of jurisdiction to review Minga’s final order of
removal because he is removable for committing drug and gun offenses covered by
8 U.S.C.
§ 1227(a)(2)(B)(i) and (C). The courts of appeals uniformly have interpreted § 1252(a)(2)(C)
to forbid review of any motion to set aside an order of removal like the one entered against
Minga. See Freeman v. Holder,
596 F.3d 952, 956 (8th Cir. 2010); Ngaeth v. Mukasey,
545 F.3d
796, 800 (9th Cir. 2008); Zamora‐Mallari v. Mukasey,
514 F.3d 679, 696 (7th Cir. 2008); Khan v.
Gonzales,
495 F.3d 31, 34 (2d Cir. 2007); Cruz v. Att’y Gen.,
452 F.3d 240, 246‐47 (3d Cir. 2006);
Boakai v. Gonzales,
447 F.3d 1, 4 (1st Cir. 2006); Patel v. Att’y Gen.,
334 F.3d 1259, 1262 (11th
Cir. 2003). See also Kucana v. Holder,
130 S. Ct. 827, 839 n.17 (2010) (declining to reach
question whether review of order denying motion to reopen would be precluded if court
lacked jurisdiction over underlying claim for relief). And Minga does not advance a legal or
constitutional question, the only exception to the jurisdictional bar. See
8 U.S.C.
§ 1252(a)(2)(D). The Board’s ultimate conclusion that he was not prejudiced by counsel’s
alleged ineffectiveness is a question of fact, not of law. See Jezierski v. Mukasey,
543 F.3d 886,
890 (7th Cir. 2008). See also Patel v. Gonzales,
496 F.3d 829, 831 (7th Cir. 2007) (explaining that
Board’s ineffectiveness determination is discretionary); Stroe v. INS,
256 F.3d 498, 501 (7th
Cir. 2001) (same). Nor is there any constitutional right to effective assistance of counsel in
an immigration proceeding. See Ghaffar v. Mukasey,
551 F.3d 651, 656 (7th Cir. 2008); Rafiyev
v. Mukasey,
536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey,
526 F.3d 788, 798 (4th Cir.
2008), vacated on other grounds,
130 S. Ct. 350 (2009); Patel,
496 F.3d at 831; Magala v. Gonzales,
434 F.3d 523, 525‐26 (7th Cir. 2005); Stroe,
256 F.3d at 500‐01. In any event Minga grounds
his argument in the Board’s Lozada rule that authorizes relief, at the Board’s discretion, to
aliens who have suffered ineffective assistance of counsel; he has not even attempted to
develop an argument that his lawyer’s alleged incompetence was so egregious that he was
deprived a reasonable opportunity to present his case in violation of the Due Process
Clause. See Kay v. Ashcroft,
387 F.3d 664, 676 (7th Cir. 2004).
DISMISSED.
