           Case: 12-16096   Date Filed: 08/19/2013   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16096
                         Non-Argument Calendar
                       ________________________

                        Agency No. A041-358-962



DELGARDO ROLANDO RICHARDS,
a.k.a. Delgardo Richards,
a.k.a. Delgardo Rolando Richards,
a.k.a. Delgard Richards,

                                                                       Petitioner,

                                  versus

US ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                            (August 19, 2013)

Before CARNES, Chief Judge, BARKETT, and FAY, Circuit Judges.

PER CURIAM:
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      Delgardo Rolando Richards, a native and citizen of Jamaica, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of his application for cancellation of removal,

Immigration and Nationality Act (“INA”) § 240A(a), 8 U.S.C. § 1229b(a). On

appeal, Richards argues that: (1) the BIA erred by failing to consider all of the

evidence and engaging in “prohibited de novo fact finding;” (2) the IJ failed to rule

on his removability; and (3) he received ineffective assistance of counsel. For the

reasons set forth below, we dismiss the petition in part and deny it in part.

                                          I.

      Richards, a native and citizen of Jamaica, was admitted to the United States

on or about August 24, 1987, as a lawful permanent resident. On March 21, 2012,

the Department of Homeland Security (“DHS”) issued Richards a notice to appear,

charging him as removable under INA § 237(a)(2)(B)(i), for having been convicted

of violating a controlled substance law. Specifically, he was convicted of

marijuana possession in 2005, 2006, and 2008, and he was convicted of possessing

drug paraphernalia in 2008.

      Richards, through counsel, applied for cancellation of removal. He

conceded his removability as charged in the allegations set forth in the notice to

appear. He argued that his removal should be cancelled, however, because (1) he

has lawfully resided in the United States for 25 years, arriving at the age of 7;


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(2) he has not been convicted of an aggravated felony; (3) he is married to a U.S.

citizen, who is pregnant with his child and has a high-risk pregnancy; (4) he has

strong families ties to the United States; (5) he would have difficulty gaining

employment in Jamaica, and he has little connections to that country; and (6) his

family will face hardship if he is removed. Further, Richards asserted that the

adverse factors in his case were not significant. He admitted that he had three

convictions for marijuana possession and a conviction for malicious injury to an

animal. Additionally, he had two separate sets of criminal charges pending against

him: three counts of manufacturing or selling drugs with intent to distribute, and

three counts of possession with intent to distribute drugs near a school. However,

he argued that none of his prior convictions involved violence or the manufacture

or sale of drugs, and he has abided by the terms of his sentences.

      In support of his application, he submitted documentation of the immigration

and citizenship status of his family, his marriage certificate, affidavits of family

members attesting to his good moral character and requesting that he not be

removed, letters from physicians concerning his wife’s high-risk pregnancy, and

documents relating to his criminal history. As to his prior drug convictions, he

submitted criminal records showing that: (1) in 2008, he pled guilty to possession

of marijuana and to possession of drug paraphernalia; (2) in 2006, he pled guilty to




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possession of marijuana; and (3) in 2005, he was found guilty of possession of

marijuana after a bench trial.

      After a hearing, during which Richards and his mother testified, the IJ issued

an oral decision denying relief. The IJ found that the long duration of Richards’s

residence in the United States, his strong family ties, and his wife’s high-risk

pregnancy were positive factors that favored cancellation of removal. However,

his “very sketchy” work history, failure to file tax returns, the presence of his

brother in Jamaica, his lengthy criminal history, and his lack of accountability and

rehabilitation weighed against cancellation of removal. The IJ noted that Richards

had failed to accept any accountability for his unlawful acts, and, ultimately, he

had not shown that he understood the consequences of his actions or the

seriousness of his behavior. The IJ also noted the pending criminal charges against

Richards involving drug trafficking. The IJ concluded that Richards was not

entitled to cancellation of removal, and it ordered him to be removed to Jamaica.

      Richards, proceeding pro se, appealed the IJ’s decision to the BIA. In his

notice of appeal, he asserted that his counsel was highly ineffective, and the IJ was

provided with false and inaccurate information pertaining to his criminal history.

In his appellate brief, he asserted that the IJ erred in failing to consider all of the

positive factors, which outweighed the negative factors in the cancellation of




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removal analysis. He also asserted that the IJ failed to determine whether the

charges alleged by the DHS were sufficient to establish removability.

      The BIA dismissed the appeal. Regarding the issue of removability, the BIA

found that Richards, through his former counsel, had conceded removability, and

even if he had not, the three offenses charged in the notice to appear provided clear

and convincing evidence that he was subject to removal under INA

§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). The BIA noted that, to the extent

that Richards asserted that these convictions were unconstitutional, his remedy was

through post-conviction relief, but the convictions would remain effective for

immigration purposes unless and until they are vacated. The BIA further noted

that neither it, nor the IJ, sought to marginalize the importance of his family ties.

The BIA then discussed the positive factors in the case, concluding that the strong

family ties and humanitarian factors weighed in favor of granting relief.

Specifically, the BIA noted that Richards has resided in the United States since

1987, he was married to a U.S. citizen who recently gave birth to his child, and he

presented numerous letters and statements of support from family and friends.

However, the BIA also found that, although tax deductions have been made to

Richards’s paycheck, his failure to ever file an income tax return undermined any

weight that would generally be afforded to a positive work history.




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      The BIA recognized that, after residing in this country since childhood, it

would be difficult for Richards to relocate to Jamaica, and his removal will also

result in a financial and emotional hardship to his wife and child. The BIA,

however, agreed with the IJ that Richards had not been rehabilitated, concluding

that, because Richards asserted that he had been set up with trumped up charges,

there was no accountability or acceptance of responsibility. Based on Richards’s

failure to accept responsibility for his crimes, as well as his continued use of

marijuana until the day that he was detained, the BIA stated that it was not

persuaded by Richards’s attempts to rehabilitate himself and attend religious

services while detained.

      Based on the foregoing, the BIA agreed with the IJ that Richards had not

established that his case warranted cancellation of removal. The BIA also noted

that, although Richards asserted that his counsel was highly ineffective and the IJ

received inaccurate information about his criminal history, no remand was

necessary, as Richards failed to demonstrate any prejudice. Specifically, Richards

had not demonstrated that, but for counsel’s alleged errors, he would not have been

subject to removal or that he would have demonstrated that he was entitled to

cancellation of removal as a matter of discretion.




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                                          II.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA agreed with the IJ’s findings, but

it did not expressly adopt its decision, so we review only the BIA’s decision. Id.

      We review de novo whether we have jurisdiction to consider a petition for

review. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir.

2006). Any alien is deportable if he has been convicted of violating a law relating

to a controlled substance, other than a single offense involving possession for one’s

own use of 30 grams or less of marijuana. INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i). We lack jurisdiction to review any claim by “an alien who is

removable by reason of having committed a criminal offense covered in . . . [8

U.S.C. §] 1227(a)(2)(B).” INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). When

the bar to review under § 1252(a)(2)(C) is implicated, we may determine whether a

petitioner is “(1) an alien; (2) who is removable; (3) based on having committed a

disqualifying offense.” Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1346

(11th Cir. 2006) (quotation omitted).

      Under 8 U.S.C. § 1229b, the Attorney General may cancel the removal of a

permanent resident who (1) has been an alien lawfully admitted for permanent

residence for at least five years; (2) has been physically present in the United


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States for seven continuous years; and (3) has not been convicted of an aggravated

felony. INA § 240A(a), 8 U.S.C. § 1229b(a). We are restricted from reviewing

certain discretionary decisions under the INA, including the denial of cancellation

of removal under INA § 240A, 8 U.S.C. § 1229b. See INA § 242(a)(2)(B(i), 8

U.S.C. § 1252(a)(2)(B)(i). Despite the jurisdictional bars, we retain jurisdiction

over constitutional claims or questions of law raised in a petition for review. INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We retain jurisdiction over

constitutional claims only when a petitioner alleges “at least a colorable

constitutional violation,” which means that the “claim must have some possible

validity.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 & n.2 (11th Cir. 2007)

(quotations omitted). A petitioner cannot create jurisdiction “by cloaking an abuse

of discretion argument in constitutional garb.” Id. at 1284.

      Under 8 C.F.R. § 1003.1(d)(3)(i), the BIA shall not “engage in de novo

review of findings of fact determined by an immigration judge.” 8 C.F.R. §

1003.1(d)(3)(i). The BIA may only review the IJ’s factual determinations to assess

whether those determinations were clearly erroneous. Id.; see also Zhu v. U.S.

Att’y Gen., 703 F.3d 1303, 1308 (11th Cir. 2013) (holding that, § 1003.1(d)(3)

“forbids the BIA from independently engaging in fact-finding and requires it to

apply a clear error standard to [the] IJ’s factual findings”). Furthermore, except for

taking administrative notice of commonly known facts, the BIA is not permitted to


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engage in fact-finding in the course of deciding appeals. See 8 C.F.R.

§ 1003.1(d)(3)(iv). The BIA, however, “may review questions of law, discretion,

and judgment and all other issues in appeals from decisions of immigration judges

de novo.” Id. § 1003.1(d)(3)(ii). In determining whether established facts are

sufficient to meet a legal standard, we have explained that, to the extent that the

BIA has the ability to reweigh evidence, this power is limited to doing so “through

the prism of clear error review.” Zhu, 703 F.3d at 1315. “In other words, the BIA

must find that, on balance, the weight of the evidence so strongly militates against

the IJ’s finding that the BIA is left with the definite and firm conviction that a

mistake has been committed.” Id. (quotation omitted).

      We have held that a petitioner may not collaterally attack an underlying

conviction in an immigration proceeding. See Mohammed v. Ashcroft, 261 F.3d

1244, 1251 (11th Cir. 2001) (stating that petitioner’s purported due process claim

that he was not advised of the immigration consequences of his guilty plea should

be challenged in a collateral attack on his conviction and is not reviewable in a

removal proceeding). Finally, we have stated that:

      [t]o establish the ineffective assistance of counsel in the context of a
      deportation hearing, an alien must establish that his or her counsel’s
      performance was deficient to the point that it impinged upon the
      fundamental fairness of the hearing such that the alien was unable to
      reasonably present his or her case.




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Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). In Matter of

Lozada, the BIA held that:

      A motion to reopen or reconsider based upon a claim of ineffective
      assistance of counsel requires (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). We have upheld the Matter of Lozada

requirements, and held that an alien also must show prejudice when he advances an

ineffective-assistance claim. See Dakane, 399 F.3d at 1274.

      In this case, Richards was found to be removable pursuant to

§ 1227(a)(2)(B)(i) and the BIA determined that, after weighing the positive

equities against the negative factors in his case, he was not entitled to cancellation

of removal. Thus, the jurisdiction-stripping provisions of § 1252(a)(2)(B) and

§ 1252(a)(2)(C) preclude us from reviewing the BIA’s decision unless Richards

raises a colorable constitutional claim or a legal question. See

INA §§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i); INA § 242(a)(2)(C), 8 U.S.C.

§ 1252(a)(2)(C); Arias, 482 F.3d at 1284 & n.2. In his brief, Richards does not

address the jurisdictional issues in this case. Moreover, even though he seemingly


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asserts legal claims, his claims have no colorable merit for the reasons discussed

below. See Amaya-Artunduaga, 463 F.3d at 1251; Arias, 482 F.3d at 1284 & n.2.

      On appeal, Richards appears to assert that the IJ’s decision was erroneous

because the BIA viewed certain facts as favorable to him, such as the hardship to

his family or his employment history, and the IJ either ignored those factors or

viewed them negatively. However, because the BIA did not expressly adopt the

IJ’s decision, we are limited to reviewing the BIA’s decision, and it is not relevant

whether the IJ erred by ignoring or improperly weighing certain factors. See Al

Najjar, 257 F.3d at 1284. To the extent that Richards suggests that the BIA

improperly weighed the positive and negative factors in his case based on the

evidence presented or that it failed to consider certain factors, he merely challenges

the BIA’s discretionary judgment, and we lack jurisdiction over his claims. See

INA § 242(a)(2)(B(i), 8 U.S.C. § 1252(a)(2)(B)(i).

      Additionally, contrary to Richards’s argument, the BIA did not engage in de

novo fact-finding. Instead, the BIA considered the evidence presented during the

removal hearing, and it agreed with the IJ’s determination that cancellation of

removal was not warranted. See 8 C.F.R. § 1003.1(d)(3)(i); Zhu, 703 F.3d at 1308.

Richards claims that his attempts to rehabilitate himself were demonstrated in the

record, but both the BIA and IJ rejected this argument based on his refusal to

accept responsibility for his criminal offenses during the removal hearing. We lack


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jurisdiction over that discretionary determination. See INA § 242(a)(2)(B(i), 8

U.S.C. § 1252(a)(2)(B)(i). In sum, Richards fails to identify, and the record does

not reveal, any BIA “de novo fact-finding” that was independent of, or conflicted

with, the IJ’s factual findings.

      Further, Richard also suggests that he would not have pled guilty to his prior

drug offenses if he had been aware that he could face removal proceedings, and he

claims that the IJ failed to adequately provide a ruling or any analysis regarding his

removability. However, Richards conceded his removability and admitted to his

prior convictions, and he does not assert that he has sought collateral review of

those convictions or that they have been invalidated. Thus, his drug convictions

remain valid for the purpose of establishing his removability. See Mohammed, 261

F.3d at 1251. Additionally, Richards’s argument, that the BIA failed to consider

the nature, timing, and seriousness of his drug offenses, essentially challenges the

BIA’s discretionary determination regarding how much weight to afford to his

criminal history, and we lack jurisdiction over that claim. See INA

§ 242(a)(2)(B(i), 8 U.S.C. § 1252(a)(2)(B)(i).

      Finally, as to Richards’s claims of ineffective assistance of counsel, he fails

to sufficiently establish a colorable due process claim because he has not shown

that he was prejudiced. See Dakane, 399 F.3d at 1274. Richard argues that

counsel was ineffective for conceding his removability and failing to require the


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government to prove that he was removable. However, Richards was not

prejudiced because the record showed that he had been convicted of three

marijuana offenses, and he testified that he pled guilty to possession charges.

Richards does not suggest that, if his counsel had challenged his removability, the

government would have been unable to prove that he was removable based on

those convictions. As to his claims that counsel failed to adequately present

evidence and prevented him from reasonably presenting his case, he fails to

identify any evidence that his counsel failed to present that would have been likely

to result in a favorable exercise of discretion. Although he asserts that his counsel

failed to adequately present evidence of hardship, the BIA explicitly found that

Richards’s removal would result in a financial and emotional hardship to his wife

and child. Thus, it does not appear that additional evidence on the issue of

hardship would have benefitted him. Further, he makes a conclusory statement

that counsel prevented him from reasonably presenting his case without further

explaining his argument. As such, he has not established that he was prejudiced by

counsel’s alleged errors, and he is not entitled to reversal based on his ineffective

assistance of counsel claims. See id. In sum, we lack jurisdiction over Richards

petition for review of the BIA’s discretionary decision to deny cancellation of

removal, and, to the extent that we retain jurisdiction over his asserted legal claims,

those claims are meritless.


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      For the foregoing reasons, we dismiss in part and deny in part Richards’s

petition for review.

      PETITION DISMISSED IN PART AND DENIED IN PART.




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