[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 05, 2006
No. 05-16089 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A28-539-525
MIRZA ARSHAD BAIG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 5, 2006)
Before DUBINA, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Mirza Arshad Baig petitions, pro se, for review of the Board of Immigration
Appeals’ (“BIA”) order denying his claims of ineffective assistance of counsel.
This petition originated as a § 2241 habeas petition filed in a district court that was
then transferred under § 106(c) of the REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 231, to this Court.
In this case, there is no dispute that Baig is an alien who is removable based
on his conviction of an aggravated felony, thus we do not have jurisdiction to
review Baig’s order of removal. However, we do have jurisdiction to review his
petition to the extent that it raises questions of law or constitutional claims. See 8
U.S.C. § 1252(a)(2)(D). Baig makes the constitutional argument that he received
ineffective assistance of counsel. Accordingly, we have jurisdiction to review
Baig’s petition as to this claim. And to the extent that the BIA based its decision
on a legal determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d
1244, 1247-48 (11th Cir. 2001). As for the BIA’s factual findings, we review them
under the substantial-evidence test and “must affirm . . . if [the findings are]
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.
2001). (quotation omitted).
In civil removal proceedings, an alien is not entitled to a Sixth Amendment
right to counsel, but has the constitutional right under the Fifth Amendment Due
Process Clause to a fundamentally fair hearing and to effective assistance of
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counsel where counsel has been obtained. Dakane v. U.S. Att’y Gen., 399 F.3d
1269, 1273-74 (11th Cir. 2005). In Matter of Lozada, the BIA addressed the claim
of ineffective counsel in the context of a motion to reopen, finding that it required:
(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 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.
19 I.&N. Dec. 637, 639 (BIA 1988). In addition to meeting the above
requirements, and alien must also show prejudice. Dakane, 399 F.3d at 1274.
“Prejudice exists when the performance of counsel is so inadequate that there is a
reasonable probability that but for the attorney’s error, the outcome of the
proceedings would have been different.” Id.
In this case, the BIA found that Baig satisfied the Matter of Lozada test and
the government does not dispute this finding. Thus, the only issue is whether Baig
suffered any prejudice as a result of his counsel’s alleged ineffectiveness. The BIA
made the factual finding that Baig had a 1995 conviction for possession of cocaine
and a 2003 conviction for the purchase and possession of 20 grams or less of
cannabis. The record contains substantial evidence that supports the BIA’s finding
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that Baig had two drug convictions.
In so far as Baig argues that his counsel should have challenged the legal
finding that these two convictions qualified as aggravated felonies, his argument is
without merit. Under the INA, an “aggravated felony” includes any drug
trafficking crime as defined by 18 U.S.C. § 924(c). See 8 U.S.C. § 1101(a)(43)(B).
Section 924(c)(2) in turn defines “drug trafficking crime” to mean “any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)” (“CSA”).
The CSA defines “felony” as “any Federal or State offense classified by applicable
Federal or State law as a felony.” 21 U.S.C. § 802(13). Baig’s cocaine-purchase
offense was a felony under Florida law. Fla. Stat. §§ 893.03(2)(a)(4) and
893.13(2)(a)(1). Additionally, the purchase of cannabis is a felony under Florida
law. Fla. Stat. §§ 893.03(1)(c)(7) and 893.13(2)(a)(2). Therefore, both of Baig’s
convictions qualified as an “aggravated felony” within the meaning of
§ 1101(a)(43).
Thus, based on the evidence in the record, Baig was removable because of
his two convictions for aggravated felonies. Therefore, there is not a reasonable
probability that, but for the attorney’s actions, the outcome of the proceedings
would have been different. Dakane, 399 F.3d at 1274. To the extent Baig raises
any additional arguments that counsel was ineffective at any stage in his relevant
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proceedings, we reject those arguments. Accordingly, we deny Baig’s petition.
PETITION DENIED.
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