                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                JULY 7, 2005
                               No. 04-14592                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                            BIA No. A31-330-232

FABIOLA DEL SOCORRO GONZALEZ-QUINTERO,


                                                                  Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                         ________________________

                     Petition for Review of an Order of the
                         Board of Immigration Appeals
                        _________________________

                                (July 7, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Fabiola Del Socorro Gonzalez-Quintero, a Colombian national, petitions for
review of the final order of the Board of Immigration Appeals (“BIA”), which

affirmed an immigration judge’s (“IJ”) determination that she is deportable under

former Immigration and Nationality Act (“INA”) § 241(a)(2)(A)(iii) (1996) (now

INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)), for having been convicted

of an aggravated felony, and under former INA § 241(a)(2)(B)(i) (1996) (now INA

§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)), for having been convicted of

violating a law of the United States. Gonzalez-Quintero also petitions for review

of the final order of the BIA that affirms the IJ’s determination that she abandoned

her application for a waiver of deportability under former INA § 212(c), 8 U.S.C. §

1182(c) (repealed 1996) (“212(c) waiver”) and withholding of deportation under

former INA § 234(h) (1996) (now INA § 241(b)(3), 8 U.S.C. § 1231(b)(3))

because she failed to file those applications by the ordered date. On appeal,

Gonzalez-Quintero argues that the IJ and the BIA violated her due process rights in

determining that she abandoned her applications for the 212(c) waiver and

withholding of deportation.1




       1
         Because Gonzalez-Quintero’s deportation proceedings commenced before April 1, 1997,
and the BIA issued the final deportation order after October 30, 1996, this case is governed by
the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”). See Al Najjar v. INS, 257 F.3d
1262, 1276 (11th Cir. 2001).

                                               2
      I.     Jurisdiction

      Before reaching the merits of Gonzalez-Quintero’s petition, we must

consider whether we have subject matter jurisdiction. See Farquharson v. Att’y

Gen., 246 F.3d 1317, 1319 (11th Cir. 2001). “We review subject matter

jurisdiction de novo.” Garcia v. Att’y Gen., 329 F.3d 1217, 1220 (11th Cir. 2003).

We also review the BIA’s statutory interpretation de novo and will defer to the

BIA’s interpretation if it is reasonable and does not contradict the clear intent of

Congress. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-44 (1984). “We review constitutional challenges de novo.” Lonyem v.

Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).

      The transitional rules provide that “there shall be no appeal permitted in the

case of an alien who is inadmissible or deportable by reason of having committed a

criminal offense covered in . . . [former] section 241(a)(2)(A)(iii), (B), (C), or (D).”

IIRIRA § 309(c)(4)(G). “Notwithstanding this restriction, this Court retains

jurisdiction to determine whether an alien is deportable under the immigration

statute.” Farquharson, 246 F.3d at 1320. Our authority to review exists only to

determine whether a petitioner is “(1) an alien (2) deportable (3) by reason of a

criminal offense listed in the statute.” Id.; Itani v. Ashcroft, 298 F.3d 1213, 1215

n.2 (11th Cir. 2002). If these conditions are met, then IIRIRA § 309(c)(4)(G)

divests us of our jurisdiction to review the deportation order. Garcia, 329 F.3d at
                                           3
1221.

        According to former INA § 241(a)(2)(A)(iii), “[a]ny alien who is convicted

of an aggravated felony at any time after entry is deportable.” Furthermore,

according to former INA § 241(a)(2)(B)(i), “[a]ny alien who at any time after

admission has been convicted of a violation of . . . any law or regulation of . . . the

United States . . . is deportable.” Because the IJ found and the BIA affirmed that

Gonzalez-Quintero was deportable under both of these provisions, IIRIRA §

309(c)(4)(G) is implicated. See Itani, 298 F.3d at 1215 n.2.

        Despite the jurisdictional bar of § 309(c)(4)(G) , we retain jurisdiction to

review “substantial constitutional questions raised by a petitioner on direct

review.” Farquharson, 246 F.3d at 1322. We also retain jurisdiction over

questions of law raised in a petition for review. INA § 242(a)(2)(D), 8 U.S.C. §

1252(a)(2)(D) (as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231 (2005) (“REAL ID Act”)).

        The administrative record supports the conclusion that Gonzalez-Quintero is

“(1) an alien (2) deportable (3) by reason of a criminal offense listed in the statute.”

See Farquharson, 246 F.3d at 1320. During her deportation hearing, Gonzalez-

Quintero conceded that she was a native and citizen of Colombia. She did not

challenge the IJ’s finding that she was an alien before the BIA, nor does she do so

before this Court. Moreover, Gonzalez-Quintero admitted during her deportation
                                            4
hearing – and admits before this Court – that she was convicted of conspiracy to

possess with intent to distribute and distribution of “CDS: heroin and cocaine,” in

violation of 21 U.S.C. § 846. As ordered by the IJ and affirmed by the BIA, this

conviction was sufficient to deport Gonzalez-Quintero under either former §

241(a)(2)(A)(iii) (conviction for aggravated felony) or former § 241(a)(2)(B)(i)

(conviction for violating a law of the United States). Thus, Gonzalez-Quintero is

an alien deportable under either former § 241(a)(2)(A)(iii) or former §

241(a)(2)(B)(i).

       Gonzalez-Quintero also concedes that, because she has been convicted of an

offense covered under former INA § 241(a)(2)(A)(iii), (B), (C), or (D), and is

therefore an alien deportable under either former § 241(a)(2)(A)(iii) or former §

241(a)(2)(B)(i), IIRIRA § 309(c)(4)(G) limits this Court’s jurisdiction over her

appeal. Accordingly, we lack jurisdiction to address the merits of her petition for

review, except to the extent she raises any substantial constitutional issues or

questions of law.

II.   Substantial Constitutional Issues

      Gonzalez-Quintero raises two due process claims. Due process requires that

all aliens be given notice and an opportunity to be heard in their deportation

proceedings. Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th Cir.

2001). “In order to establish a due process violation, an alien must show that he or
                                           5
she was deprived of liberty without due process of law, and that the asserted error

caused [her] substantial prejudice.” Garcia, 329 F.3d at 1222 (internal citations

omitted).

         A.    212(c) Waiver

         Gonzalez-Quintero argues on appeal that the IJ and BIA violated her due

process rights in holding that she abandoned her application for a discretionary

212(c) wavier and in failing to hold a hearing on the issue. “[T]his Court has held

that the failure to receive discretionary relief in the immigration context does not

deprive an alien of a constitutionally protected liberty interest.” Tefel v. Reno, 180

F.3d 1286, 1300 (11th Cir. 1999). Accordingly, “an alien has no constitutionally-

protected right to discretionary relief or to be eligible for discretionary relief.”

Oguejiofor v. Att’y Gen., 277 F.3d 1305, 1309 (11th Cir. 2002). Because a 212(c)

wavier is discretionary relief from deportation, and an alien has no constitutional

right to relief, Gonzalez-Quintero’s argument does not constitute a substantial

constitutional question. Accordingly, this court lacks jurisdiction to address this

issue.

         B.    Withholding of Deportation

         Gonzalez-Quintero also argues on appeal that the IJ and BIA violated her

due process rights in holding that she abandoned her request for withholding of

deportation by filing her asylum application after the ordered deadline. Unlike a
                                            6
212(c) waiver, “withholding of removal [or deportation], where warranted, is a

mandatory and not a discretionary remedy.” Antipova v. Att’y Gen., 392 F.3d

1259, 1265 n.2 (11th Cir. 2004).

      The IJ “may set and extend time limits for the filing of applications and

related documents and responses thereto, if any. If an application or document is

not filed within the time set by the [IJ], the opportunity to file that application or

document shall be deemed waived.” 8 C.F.R. § 1003.31(c).

      We have not addressed whether an IJ violates an alien’s due process rights

when the IJ finds that the alien’s failure to file an asylum application by the

ordered deadline results in an abandonment or wavier of the alien’s request for

withholding of deportation. However, in a similar case, Kuschchak v. Aschroft,

366 F.3d 597, 604-06 (7th Cir. 2004), the Seventh Circuit held that the IJ did not

violate the alien’s due process rights in finding that the alien abandoned his

withholding of removal application. The IJ advised the alien of the deadline to file

any documents, but the alien ignored it; any confusion in relation to the application

was due to the alien and his attorney – not to the IJ; and the alien failed to show

prejudice, i.e., that the IJ’s actions had the potential for affecting the outcome of

the action. Id.

      Likewise, in the instant case, the IJ informed Gonzalez-Quintero that she

must file an asylum application before he could consider the relief of withholding
                                            7
of deportation. The IJ scheduled Gonzalez-Quintero’s next deportation hearing for

approximately one year later and notified Gonzalez-Quintero of her asylum

application deadline, which was approximately one month before the next hearing.

He also asked whether she had any questions, and she replied, through counsel,

that she had none. The IJ also sent Gonzalez-Quintero written notice of her next

deportation hearing, and reminded her that her application was due. Thus, any

confusion in relation to the application deadline was due to Gonzalez-Quintero or

her attorney, not the IJ.

       Moreover, Gonzalez-Quintero has not demonstrated, or even argued, that the

determination that she abandoned her application for withholding of deportation

prejudiced her. She has not presented any evidence or arguments that the outcome

of the hearing would have been different had the IJ considered her untimely

application. Accordingly, Gonzalez-Quintero cannot establish a due process claim.

III.   Question of Law

       Gonzalez-Quintero also argues that her 212(c) waiver application should

have been considered “filed” when she submitted it, despite the fact that she had

not paid her filing fees. However, the immigration regulations mandate that a fee

receipt or a fee wavier form accompany the application for the application to be

considered filed with the immigration court. 8 C.F.R. § 1003.31(b). Gonzalez-

Quintero had not paid her filing fee, nor had she requested a fee waiver, when she
                                          8
initially submitted her 212(c) waiver application. Therefore, her application was

not considered filed when she submitted it to the IJ.

IV.   Conclusion

      Accordingly, because Gonzalez-Quintero has raised no substantial

constitutional arguments or questions of law that affect our jurisdiction to review

the BIA’s deportation order, we dismiss her petition for review.

      PETITION DISMISSED.




                                          9
