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                                                         [DO NOT PUBLISH]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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