Lozano v. Garland

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   opinion should not be published and is not precedent except under the limited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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                                     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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