Jose Angel Gonzalez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14158
Non-Argument Calendar
________________________
Agency No. A087-003-203
JOSE ANGEL GONZALEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 10, 2015)
Before MARTIN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Jose Angel Gonzalez, proceeding pro se, petitions for review of an order by
the Board of Immigration Appeals (“BIA”) dismissing his pro se appeal from the
Immigration Judge’s (“IJ”) decision ordering his removal to Mexico. After careful
review, we deny the petition in part and dismiss it in part.
I.
Gonzalez, a native and citizen of Mexico, became a legal permanent resident
of the United States in April 2008. In February 2009, he was convicted, pursuant
to a guilty plea, in Florida state court of possession of cannabis, in violation of Fla.
Stat. 893.13(6)(a), and of possession of cannabis with intent to sell or deliver, in
violation of Fla. Stat. § 893.13(1)(a). For these offenses, he was sentenced to
eighteen months’ probation, which terminated in January 2010.
In January 2011, the Department of Homeland Security commenced removal
proceedings against Gonzalez after he sought admission to the United States at the
Miami International Airport. DHS charged that he was removable as an alien
convicted of a controlled substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and as
an alien who the immigration officer had reason to believe “is or has been an illicit
trafficker in any controlled substance,” id. § 1182(a)(2)(C).
At a master calendar hearing, Gonzalez through counsel admitted that he
was an alien who had sought admission to the United States, but he denied the
charges of removability. Based on conviction records submitted by the
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government, the IJ sustained both charges. Gonzalez did not seek any relief from
removal. Instead, he requested a continuance of his removal proceedings while he
pursued a collateral attack on his convictions in Florida court. Gonzalez sought to
vacate his convictions under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473(2010), arguing that his plea counsel provided ineffective assistance in failing to
advise him of the immigration consequences of a guilty plea. Over the
government’s objection, the IJ granted a continuance.
Gonzalez made two additional requests to continue the removal proceedings
pending the United States Supreme Court’s and the Florida Supreme Court’s
decisions on the question of whether Padilla applied retroactively. The IJ granted
both requests and continued proceedings until March 2013.
By March 2013, both the United States Supreme Court and the Florida
Supreme Court had held that Padilla did not apply retroactively. See Chaidez v.
United States, 133 S. Ct. 1103 (2013); Hernandez v. State, 124 So. 3d 757 (Fla.
2012). Consequently, at a hearing in March 2013, the IJ denied Gonzalez’s request
for another continuance. The IJ then issued an oral decision and order of removal,
finding that Gonzalez was removable based on his drug-trafficking and controlled-
substance convictions and noting that his attorney had indicated that he was
ineligible for any other relief from removal.
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Gonzalez filed a pro se notice of appeal to the BIA. In the materials he
submitted to the BIA, he indicated that he was appealing because (1) the IJ erred in
not further continuing his case pending his challenge to his criminal convictions
based on plea counsel’s ineffective assistance, (2) he was dissatisfied with his
former immigration attorney because she did not properly advocate for him or
advise him of the availability of asylum relief, and (3) he wished to apply for
asylum relief based on the threat posed by Mexico’s ongoing drug war.
On August 13, 2014, the BIA issued a decision dismissing Gonzalez’s
appeal. The BIA concluded that the IJ properly denied Gonzalez’s request for a
continuance because Gonzalez’s conviction was final for immigration purposes,
notwithstanding his pending collateral attack, and he had not shown good cause for
a continuance. Furthermore, the BIA found that Gonzalez did not comply with the
procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), for raising a claim of ineffective assistance of immigration counsel. This
petition for review followed.
Construing Gonzalez’s appellate brief liberally, see Lorisme v. I.N.S., 129
F.3d 1441, 1444 n.3 (11th Cir. 1997), Gonzalez contends that he was precluded
from seeking relief from removal due to the ineffectiveness of his immigration
attorney, and he suggests that he did in fact comply with the procedural
requirements of Lozada. He also indicates that he may be eligible for asylum and
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cancellation of removal. Specifically, he contends that his Florida convictions do
not render him ineligible for relief under this Court’s decision in Donawa v. U.S.
Attorney General, 735 F.3d 1275 (11th Cir. 2013). The government responds that
we lack jurisdiction to consider Gonzalez’s petition for review because he has
raised no colorable constitutional question or question of law.
II.
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Under 8 U.S.C.
§ 1252(a)(2)(C), we generally lack jurisdiction to review a final order of removal
against a petitioner who is removable for having committed certain criminal
offenses, including controlled-substance offenses or drug-trafficking crimes. See 8
U.S.C. § 1182(a)(2). Despite this broad jurisdictional bar, we retain jurisdiction to
review “constitutional claims or questions of law” raised in a petition for review.
Id. § 1252(a)(2)(D). “[Q]uestions of law,” as the phrase is used in
§ 1252(a)(2)(D), include claims by a petitioner “challeng[ing] the application of an
undisputed fact pattern to a legal standard.” Jean-Pierre v. U.S. Att’y Gen., 500
F.3d 1315, 1322 (11th Cir. 2007). Thus, if we determine that an issue presents a
mixed question of law and fact, we review the BIA’s legal conclusions de novo.
See id. at 1321-22. However, a “garden-variety abuse of discretion argument”
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does not qualify as a legal question within the meaning of § 1252(a)(2)(D).
Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196-97 (11th Cir. 2008).
Also, “[w]e lack jurisdiction to consider a claim raised in a petition for
review unless the petitioner has exhausted his administrative remedies with respect
thereto.” Amaya-Artunduaga, 463 F.3d at 1250; see 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if the alien has exhausted all
administrative remedies available to the alien as of right.”).
III.
“It is well established in this Circuit that an alien in civil deportation
proceedings, while not entitled to a Sixth Amendment right to counsel, has the
constitutional right under the Fifth Amendment Due Process Clause right to a
fundamentally fair hearing[,]” which includes the right “to effective assistance of
counsel where counsel has been obtained.” Dakane v. U.S. Att’y Gen., 399 F .3d
1269, 1273 & n.6 (11th Cir. 2004); see Gbaya v. U.S. Att’y Gen., 342 F.3d 1219,
1221 (11th Cir. 2003).
In Lozada, the BIA set forth the following three procedural requirements
that a petitioner must satisfy when seeking administrative relief from an order of
removal on the basis of ineffective assistance of counsel:
(1) that the motion be supported by an affidavit of the
allegedly aggrieved respondent setting forth in detail the
agreement that was entered into with counsel with
respect to the actions to be taken and what
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representations counsel did or did not make to the
respondent in this regard, (2) that counsel whose integrity
or competence is being impugned be informed of the
allegations leveled against him and be given an
opportunity to respond, and (3) that the motion reflect
whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of
counsel’s ethical or legal responsibilities, and if not, why
not.
Dakane, 399 F.3d at 1274 (quoting Lozada, 19 I. & N. Dec. at 639). We have held
that “[t]he BIA does not abuse its discretion by filtering ineffective assistance of
counsel claims through the screening requirements of Lozada.” Gbaya, 342 F.3d
at 1223. In Gbaya, we left open the question of “whether the BIA may enforce
strict compliance with Lozada or must also accept substantial compliance.” Id. at
1222.
The government contends that the question of whether Gonzalez complied
with the requirements of Lozada is a factual one outside of this Court’s limited
jurisdiction under 8 U.S.C. § 1252(a)(2)(D). To the extent that Gonzalez claims
that he did, in fact, comply with Lozada’s requirements, he effectively challenges
the BIA’s factfinding, which we lack jurisdiction to review in this case. 1 See Jean-
1
As part of his brief on appeal, Gonzalez submitted letters showing that he filed a bar
complaint against his immigration attorney and, apparently, his plea counsel in the underlying
criminal case. However, even if we had jurisdiction to review the BIA’s factfinding, these letters
are not properly before us because they were not part of the administrative record before the
BIA. See 8 U.S.C. § 1252(a)(1), (b)(4)(A); Najjar v. Ashcroft, 257 F.3d 1262, 1278-81 (11th
Cir. 2001). Moreover, the letters are dated after the BIA issued its decision dismissing
Gonzalez’s appeal, so they do not show that he complied with the requirements of Lozada in
presenting his arguments to the BIA.
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Pierre, 500 F.3d at 1322. But “in so far as [Gonzalez] challenges the application
of an undisputed fact pattern to a legal standard,” we have jurisdiction to review
his claim. See Jean-Pierre, 500 F.3d at 1322. In other words, we have jurisdiction
to review whether a fact pattern constitutes “substantial, if not exact, compliance,
with the procedural requirements of Lozada.” See Dakane, 399 F.3d at 1274
Here, the BIA found that Gonzalez did not (1) file an affidavit detailing what
aspect of his agreement with his attorney was violated, (2) provide notice to his
attorney of the allegations of ineffective assistance, or (3) submit a bar complaint
filed with the appropriate authorities or an explanation of why no complaint was
presented. In Gbaya, we held that a petitioner did not establish substantial
compliance with Lozada because he had failed to “submit[] a sworn affidavit
attesting to the relevant facts of his ineffective assistance claim” and to “provide[]
his former counsel with notice and an opportunity to respond.” Gbaya, 342 F.3d at
1222. Therefore, under Gbaya, it is clear that Gonzalez failed to comply
substantially with the procedural requirements of Lozada.
Because § 1252(a)(2)(C) limits our review of Gonzalez’s final order of
removal, we also lack jurisdiction to review the IJ’s simultaneous denial of
Gonzalez’s request to continue removal proceedings. See Alvarez Acosta, 524
F.3d at 1195-97 & n.12. Gonzalez does not claim that the IJ applied an improper
legal standard in denying his request for a continuance, and a “garden-variety
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abuse of discretion argument” does not qualify as a legal question within the
meaning of § 1252(a)(2)(D). See id. at 1196-97; see also Zafar v. U.S. Att’y Gen.,
461 F.3d 1357, 1362 (11th Cir. 2006) (stating that the denial of motion for
continuance is reviewed for an abuse of discretion).
Finally, Gonzalez’s claim that he is eligible to apply for cancellation of
removal or for asylum, based on this Court’s decision in Donawa, is not properly
before us. 2 During his removal proceedings, Gonzalez did not apply for relief in
the form of cancellation of removal or asylum, nor did he challenge the
classification of his 2009 cannabis convictions. Because Gonzalez did not exhaust
his administrative remedies with respect to these contentions, we do not consider
Gonzalez’s present arguments on these issues. See Amaya-Artunduaga, 463 F.3d
at 1250. In so far as these challenges relate to the merits of his claim of ineffective
assistance of immigration counsel, we also do not reach them because Gonzalez
did not substantially comply with Lozada.
In sum, Gonzalez’s petition for review is DENIED IN PART and
DISMISSED IN PART.
2
In Donawa, we held that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat.
§ 893.101, was not a “drug trafficking crime,” as defined in 18 U.S.C. § 924(c)(2), and therefore
was not a “drug trafficking aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). 735 F.3d at
1279-82. Thus, Gonzalez suggests that Donawa affects whether Gonzalez’s conviction under the
same statute, § 893.13(1)(a), qualifies as an “aggravated felony” for purposes of determining his
eligibility for cancellation of removal or asylum. See 8 U.S.C. §§ 1229b(a)(3), 1158(b)(2)(B)(i).
We do not reach this question, however, because it is not properly before us.
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