           Case: 18-10986   Date Filed: 10/08/2019   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10986
                        Non-Argument Calendar
                      ________________________

                       Agency No. A089-179-836



MAURIZIO FIDUCIA,

                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (October 8, 2019)

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:
                Case: 18-10986        Date Filed: 10/08/2019       Page: 2 of 8


       Maurizio Fiducia has applied for adjustment of status to that of an alien

lawfully admitted for permanent residence, pursuant to 8 U.S.C. § 1255(a).

Although he was not entitled to a formal removal hearing, he received one. The

Immigration Judge (“IJ”) denied his application based on his incredible testimony

about his arrest on child pornography charges. On appeal to the Board of

Immigration Appeals (“BIA”), Fiducia asserted that the IJ lacked jurisdiction over

his application. He also alleged that he received ineffective assistance of counsel

before the IJ. The BIA denied relief, and Fiducia now seeks review of that

decision. For the reasons that follow, we deny his petition for review.

                                                 I

       Fiducia, a native and citizen of Italy, entered the United States in 1999 under

the Visa Waiver Program (“VWP”). 1 After he overstayed his authorization to be in

the United States, the Department of Homeland Security charged him with

removability in 2013. He was initially allowed to contest removability because the

government mistakenly believed that he had been admitted under a B-2 tourist

visa. Nonetheless, Fiducia conceded removability. Then, in 2014, Fiducia was

convicted in state court of child neglect, Fla. Stat. § 827.03(2)(d). He later

conceded that conviction as an additional ground for removability.
1
  The Visa Waiver Program provides for nationals of certain countries who follow certain
procedures to enter the United States as tourists for 90 days or less without a visa. See generally
8 U.S.C. § 1187 and 8 C.F.R. §§ 217.1–217.7. As a condition of entry, VWP entrants waive their
right to contest their later removal, unless they apply for asylum. 8 U.S.C. § 1187(b)(2).


                                                2
                  Case: 18-10986      Date Filed: 10/08/2019       Page: 3 of 8


          In 2016, Fiducia filed an application for adjustment of status based on his

relationship to his adult daughter Federica, a naturalized U.S. citizen. See 8 U.S.C.

§ 1255(a). 2 The IJ conducted a removal hearing in which Fiducia and Federica

testified. Fiducia testified that his child neglect conviction was a guilty plea he

negotiated after being arrested and charged with child pornography, based on films

he had downloaded to his home computer. He testified that he did not believe he

had done anything wrong, because he closed and deleted the films as soon as he

realized they were pornographic; he also testified that he had downloaded some

films in order to delete them so others on the internet could not view them. But he

never went to law enforcement, because he was concerned about his immigration

status.

          The IJ found Fiducia not credible. It found his testimony about the events

leading to his arrest and conviction “nonresponsive and internally inconsistent,”

and found most troubling his “conflicting and implausible explanations” about

downloading and viewing the child pornography. It also found his testimony


2
  The status of certain lawfully admitted aliens “may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is
eligible to receive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the time his application is
filed.” 8 U.S.C. § 1255(a). Aliens who were admitted through the VWP are eligible for
adjustment of status only through the petition of an immediate relative (as defined in 8 U.S.C.
§ 1151(b)(2)(A)(i)), or other limited exceptions. Id. § 1255(c)(4). See also 8 C.F.R. §§ 1245.1–
1245.22.


                                                3
               Case: 18-10986     Date Filed: 10/08/2019   Page: 4 of 8


inconsistent with the probable cause affidavit and his psycho-sexual evaluation in

the record. The IJ also found Federica’s testimony about her own marriage and her

father’s arrest to be not credible. The IJ thus found that although Fiducia was

statutorily eligible for adjustment of status, he did not merit a favorable exercise of

its discretion because the positive factors did not outweigh the negative factors of

his criminal conduct and his unremorseful testimony about it. Fiducia then

appealed the IJ’s decision.

      The BIA dismissed Fiducia’s appeal. It rejected Fiducia’s new argument that

the IJ lacked jurisdiction over him as a VWP entrant, and it found that he had not

established a deprivation of due process. It then affirmed the IJ’s discretionary

denial of adjustment of status, concluding that Fiducia’s “continued presence in the

United States is not consistent with the best interests of that [U.S.] community.”

The BIA also rejected Fiducia’s motion to reopen his case based on a claim of

ineffective assistance of counsel during his IJ proceedings, noting that he did not

follow the procedural requirements to bring such a claim and concluding that he

had not established prejudice from any error by his counsel. Fiducia timely

appealed the BIA’s decision.

                                          II

      Fiducia first argues that we must vacate the decisions of the BIA and IJ

because the IJ lacked jurisdiction over his removal proceedings, including


                                           4
               Case: 18-10986     Date Filed: 10/08/2019    Page: 5 of 8


jurisdiction to adjudicate his § 1255(a) application for adjustment of status. If

Fiducia is correct that the IJ lacked jurisdiction over his removal proceedings, we

would vacate the IJ’s order without considering his remaining issues on appeal.

      The decision of the BIA about the jurisdiction of the IJ presents a question

of law that we review de novo. See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d

1190, 1195 (11th Cir. 2006) (“To the extent that the BIA’s decision was based on a

legal determination, review is de novo.”); see also 8 U.S.C. § 1252(a)(2)(D)

(allowing judicial review of questions of law).

      The IJ had jurisdiction over Fiducia’s removal proceedings under 8 U.S.C.

§ 1229a(a)(1), which provides that, in general, “[a]n immigration judge shall

conduct proceedings for deciding the inadmissibility or deportability of an alien.”

DHS initiated removal proceedings by filing an NTA and serving it on Fiducia

under 8 C.F.R. § 1003.14(a). Had Fiducia filed his application for adjustment of

status prior to the initiation of removal proceedings, a district director for U.S.

Citizenship and Immigration Services would have heard the application. Id.

§ 1245.2(a)(5)(i). However, after the initiation of removal proceedings, the IJ “has

exclusive jurisdiction to adjudicate any application for adjustment of status.” Id.

§ 1245.2(a)(1)(i).

      Fiducia argues that the IJ lacked jurisdiction over the removal proceedings—

and by extension his application for adjustment of status—because he initially


                                           5
               Case: 18-10986     Date Filed: 10/08/2019    Page: 6 of 8


entered the country by way of the VWP. As a condition of entry, Fiducia was

required to waive his right “to contest, other than on the basis of an application for

asylum, any action for [his] removal.” 8 U.S.C. § 1187(b)(2). Fiducia contends

that, since he waived a hearing before an IJ, the IJ lacked jurisdiction altogether.

      But, while Fiducia’s waiver limits his entitlement to a removal hearing

before an IJ, it does not rob the IJ of jurisdiction to hold such a hearing. See 8

U.S.C. § 1229a(a)(1) (providing that, in general, IJs “shall conduct proceedings for

deciding the inadmissibility or deportability of an alien”). And, since Fiducia’s

waiver did not deprive the IJ of jurisdiction over his removal proceedings, the IJ

properly rendered a decision on his application for adjustment of status.

                                          III

      Fiducia next argues that the BIA erred when it denied his motion to remand

based on the ineffective assistance of his previous counsel. He challenges the

BIA’s findings that he failed to comply with the procedural requirements for

bringing such a claim and to establish prejudice from any error by his counsel. We

review only for abuse of discretion. Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220

(11th Cir. 2003).

      Our Court has approved the threshold procedural requirements that the BIA

has articulated for bringing a motion to reopen based upon a claim of ineffective

assistance of counsel:


                                           6
               Case: 18-10986     Date Filed: 10/08/2019    Page: 7 of 8


      (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.

Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004) (quoting In re

Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988)). A petitioner must also show

prejudice: “a reasonable probability that but for the attorney’s error, the outcome of

the proceedings would have been different.” Id.

      The BIA here found that Fiducia failed to meet the Lozada requirements

when he did not file an affidavit detailing the agreement with his former counsel

with respect to the actions to be taken and what representations counsel did or did

not make to him in this regard. We need not decide this issue because, even

assuming Fiducia had fully complied with Lozada, he cannot establish prejudice

from any error by his previous counsel. Even if his counsel’s alleged omissions

had actually resulted in his being ineligible for the discretionary relief of

adjustment of status, Fiducia’s “actual chances of receiving such discretionary

relief are too speculative, and too far beyond the capability of judicial review, to

conclude that [he] has actually suffered prejudice from being ineligible for”

adjustment of status. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir.
                                           7
              Case: 18-10986     Date Filed: 10/08/2019   Page: 8 of 8


1999); see also 8 U.S.C. § 1255(a); Scheerer v. U.S. Att’y Gen., 513 F.3d 1244,

1253 (11th Cir. 2008) (adjustment of status under § 1255(a) is discretionary relief).

The BIA did not abuse its discretion when it denied Fiducia’s motion to remand on

this basis.

       PETITION DENIED.




                                          8
