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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11023
                         Non-Argument Calendar
                       ________________________

                        Agency No. A074-616-204



ST. DEVON ANTHONY COVER,
a.k.a. Devon Cover,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.
                       ________________________

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

                              (July 17, 2014)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
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       St. Devon Anthony Cover, pro se, petitions for review of the Board of

Immigration Appeals’s (“BIA”) decision affirming the immigration judge’s (“IJ”)

order removing him to Jamaica because of his drug conviction involving 1,000

kilograms of marijuana. Upon review of the record and consideration of the

parties’ briefs, we deny the petition.

                                   I. BACKGROUND

A.     1988 Entry and 1999 Adjustment of Status

       In 1988, Cover, a Jamaican citizen, entered the United States as a non-

immigrant visitor. In 1999, Cover’s status was adjusted to a lawful permanent

resident.

B.     2007 Conviction and Notice to Appear

       In 2007, Cover pled guilty to conspiracy to possess with intent to distribute

1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(vii), 846. The district court sentenced Cover to 70 months’

imprisonment. Cover did not appeal. 1

       As a result of his conviction, in May 2007, the Department of Homeland

Security (“DHS”) issued a Notice to Appear (“NTA”), charging Cover as a native

and citizen of Jamaica who was removable for two reasons: (1) under INA


       1
        In 2008, Cover did file a motion to vacate under 28 U.S.C. § 2255, but the sentencing
court denied him relief. In 2013, Cover’s habeas corpus petition was dismissed. Cover did not
appeal either ruling.
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§ 237(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony,

and (2) under INA § 237(a)(2)(B)(i), as an alien who had been convicted of a

controlled substance offense. 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). The NTA

was not served, however, until 2011.

C.    August 2011 IJ Hearing

      At the August 2011 hearing in immigration court, Cover appeared pro se.

The IJ asked Cover, “[A]re you from Jamaica, and you speak English?” Cover

responded, “Yes, sir.” Cover asked for additional time to prepare. His hearing

was rescheduled for October 27, 2011.

D.    Cover’s 2011 Motion for Termination of Removal Proceedings

      Prior to the October 27 hearing, Cover, pro se, filed a “Motion for

Termination of Removal Proceedings And Motion for Issuance of an Order

Directing the Department of Homeland Security to Renew Expired Permanent

Resident Card.” In the motion, Cover admitted that (1) he was a permanent

resident, residing in the United States since 1988, and a noncitizen and (2) his

permanent resident card expired in June 2009. Cover requested that the IJ order

the agency to renew his card.

      Cover also acknowledged that he had pled guilty to a controlled substance

offense and, as a result, was removable. Cover argued that the government was

estopped from removing him because it had induced Cover to plead guilty by


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telling him that he would not be removed. Cover alleged that the promise was

made orally; it was not included in his written plea agreement.

      Cover’s attachments to the motion to terminate included: (1) several letters

from Cover’s family members asking that Cover not be removed to Jamaica, two

of which stated that Cover’s place of birth was Jamaica and (2) a letter to a prison

official, at the correctional facility where Cover was incarcerated, requesting

immigration law materials because, inter alia, he was a “deportable alien” and a

“non-U.S. citizen[].”

E.    Pre-October 27, 2011 Government Exhibits

      Sometime prior to the October 27 hearing, the government filed two

exhibits: (1) a Form I-213 Record of Deportable/Inadmissible Alien, indicating that

Cover’s place of birth and citizenship was Jamaica; and (2) a criminal judgment

showing that Cover was convicted of the crime described in NTA. A stamp on the

judgment, by the U.S. District Court Clerk for the Middle District of Florida,

certified the document as a “true and correct copy of the original.”

F.    October 27, 2011 Removal Order

      At the October 27, 2011 hearing, the IJ asked Cover if he would admit the

allegations in the NTA. Cover admitted he was a convicted felon, but declined to

answer further.




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      The IJ found Cover removable to Jamaica. The government pointed out that

“for the record . . . all of the matters contained in the NTA are addressed and

admitted in some form in [Cover]’s motions that he’s filed with the Court.”

G.    March 2012 BIA Appeal

      Cover appealed to the BIA. In March 2012, the BIA remanded Cover’s case

to the IJ for further proceedings. The BIA noted that the IJ did not issue a separate

oral or written decision setting forth his rationale for ordering Cover removed and

therefore ordered the record returned to the IJ for preparation of a full decision.

The BIA directed the IJ to determine “anew” whether Cover was removable as

charged.

H.    May 2012 Release from Prison and Request to Subpoena Witnesses

      In May 2012, Cover finished his criminal sentence and was released to the

custody of immigration officials.

      In the immigration court, Cover filed a “request to Subpoena Witnesses,”

including the Assistant U.S. Attorney (“AUSA”) involved in Cover’s criminal case

and Cover’s former defense attorneys. Cover’s request alleged that these witnesses

could attest to: (1) his cooperation with the government; and (2) the government’s

promise that he would not be removed if he pled guilty.




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      The IJ denied the subpoena request because Cover had not established that

the evidence was essential to the instant proceedings.2

I.    August 2012 Government Exhibits

      Subsequently, in immigration court, the government filed several exhibits

establishing that Cover was removable. As to Cover’s alienage, the exhibits

included copies of: (1) the 2005 decision on Cover’s Application for

Naturalization, showing that the application was administratively denied due to

poor moral character; (2) Cover’s Jamaican passport, stating that he was born in

Kingston, Jamaica; (3) a 1999 INS Memorandum of Creation of Record of Lawful

Permanent Residence, listing Cover’s country of birth as Jamaica; (4) a 1999

Application to Register Permanent Residence or Adjust Status on which Cover

listed his country of birth as Jamaica; and (5) Cover’s Birth Registration Form,

showing he was born in Kingston, Jamaica. Only the last document—the Birth

Registration Form—was a certified copy.

      As to Cover’s criminal conviction, the government submitted a certified

judgment of Cover’s drug conspiracy conviction that was identical to the certified

judgment it filed prior to the BIA’s March 2012 remand.

J.    September 6, 2012 Removal Hearing




      2
          Cover later renewed his request to subpoena witnesses, which the IJ denied.
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      At a removal hearing on September 6, 2012, Cover refused to answer any

allegations in the NTA and expressly invoked his Fifth Amendment privilege

against self-incrimination. Cover did argue that he only pled guilty in exchange

for not being removed and that his conviction was obtained in violation of his Fifth

and Sixth Amendment rights.

      Cover also orally moved to withdraw his October 5, 2011 motion to

terminate removal proceedings, and the IJ granted the motion. Cover also

expressly waived his right to apply for asylum, withholding of removal, or

protection under the Convention Against Torture.

      Cover objected to the government’s August 2012 exhibits as evidence and

argued that the documents were unauthenticated. The IJ admitted the evidence,

noted Cover’s objections, and stated that it would “give them the weight that it

deems appropriate.”

K.    September 20, 2012 IJ Decision and Order of Removal

      In his September 20, 2012 oral decision, the IJ found that the government’s

August 2012 exhibits, which the IJ found to be reliable, established Cover’s

removability. The IJ noted that Cover did not provide any testimony or

documentation to contradict the evidence against him.

      During the 2012 hearing, the IJ also determined that, (1) even if the

government orally promised not to remove Cover, he had ample time to


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collaterally attack his 2007 drug conviction and (2) thus any alleged promise by the

government did not bar the removal proceedings. The IJ ordered Cover removed

to Jamaica.

L.     October 2012 to March 2013 BIA Appeal

       In October 2012, Cover appealed the removal order to the BIA. Cover

argued, inter alia, that the government’s exhibits about his alienage and criminal

conviction were unauthenticated, inadmissible, and insufficient to show

removability.

       In March 2013, the BIA affirmed. The BIA determined that Cover made

several explicit references, in testimony and in written submissions to the court,

that he had been convicted of the felony described in the NTA. Any alleged error

in considering the criminal judgment was harmless. With respect to alienage, the

BIA found no clear error in the IJ’s findings of fact and that DHS established

Cover’s alienage based on the totality of the record. The BIA also determined that

Cover’s constitutional challenges lacked merit.

       Cover timely filed this petition for review.3

                                    II. JURISDICTION



       3
        We review only the BIA’s decision, except to the extent that it adopts the IJ’s opinion.
See Mu Ying Wu v. U.S. Att’y Gen., 745 F.3d 1140, 1153 (11th Cir. 2014). The BIA did not
expressly adopt the IJ’s opinion, so we review only the BIA’s decision. See id.


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       We lack jurisdiction to review a final removal order against an alien who is

removable under INA § 237(a)(2)(A)(iii) due to a prior conviction for an

aggravated felony, which includes a drug trafficking crime. INA § 242(a)(2)(C), 8

U.S.C. § 1252(a)(2)(C); see INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). 4

Similarly, we lack jurisdiction to review a final removal order against an alien who

is removable under INA § 237(a)(2)(B)(i), due to a conviction for a controlled

substance offense. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

       However, we retain jurisdiction to review whether the statutory conditions

limiting review exist. Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 1283

(11th Cir. 2005). Thus, we have jurisdiction to review whether Cover (1) is an

alien (2) who is removable by reason of having committed a crime covered by the

statute. Id. 5

       We also have jurisdiction over constitutional claims: INA § 242(a)(2)(D)

vests this Court with jurisdiction to review all appeals that present “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); Alvarez Acosta v. U.S.

Att’y Gen., 524 F.3d 1191, 1195-96 (11th Cir. 2008).

       4
        We review our own subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
       5
         In this case, our jurisdictional inquiry here actually merges with the merits of Cover’s
appeal. See Adefemi v. Ashcroft, 358 F.3d 828, 832-33 (11th Cir. 2004) (en banc) (determining
this Court’s jurisdictional inquiry as to whether it could review an alien’s removal order merged
with the merits of the alien’s appeal into whether the government sufficiently proved that the
alien was convicted of a deportable offense).


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                                 III. REMOVABILITY

       The government “has the burden of establishing by clear and convincing

evidence” that the individual in removal proceedings is (1) an alien and (2)

deportable. INA § 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A). 6

       Evidence of foreign birth gives rise to a rebuttable presumption of alienage,

and the burden shifts to the individual in removal proceedings to prove citizenship.

Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153, 164 (BIA 2001). An alien who,

after admission, is convicted of conspiracy to possess with intent to distribute

1,000 kilograms or more of marijuana is deportable. 7 See INA § 237(a)(2)(A)(iii),

(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i); INA § 101(a)(43)(B), 8

U.S.C. § 1101(a)(43)(B).

       The BIA has determined that, although some form of authentication is

required of domestic or foreign records presented in immigration proceedings,

“any authentication procedure that comports with common law rules of evidence

constitutes an acceptable level of proof.” Matter of Velasquez, 25 I. & N. Dec.


       6
         We review the BIA’s factual findings to determine whether they are supported by
substantial evidence. Adefemi, 386 F.3d at 1026-27. “Under the substantial evidence test, we
view the record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Id. at 1027. We may reverse the BIA’s factual
findings only when the record so compels. Id. Constitutional questions and legal conclusions
are reviewed de novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013).
       7
        The term “removable” encompasses the term “deportable.” Dormescar v. U.S. Att’y
Gen., 690 F.3d 1258, 1261 (11th Cir. 2012).

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680, 684 (BIA 2012) (alteration and quotation marks omitted); see Matter of D-R-,

25 I. & N. Dec. 445, 458 (BIA 2011). “The guiding principle is that proper

authentication requires some sort of proof that the document is what it purports to

be.” Matter of Velasquez, 25 I. & N. Dec. at 684 (quotation marks omitted). 8

       Here, substantial evidence supports the BIA’s determination that the

government established that Cover was removable. As to alienage, the certified

copy of Cover’s Birth Registration Form showed that he was born in Kingston,

Jamaica. The IJ found that the copy of Cover’s Birth Registration Form was

reliable, and the document was certified as a true copy of the original. This was

sufficient to authenticate the document. See id. Because the government

presented evidence of Cover’s foreign birth, a rebuttable presumption of alienage

arose. See Matter of Rodriguez-Tejedor, 23 I. & N. Dec. at 164. Cover did not

submit any evidence to rebut this presumption.

       As to his conviction for a deportable offense, a certified copy of the

judgment entered in Cover’s criminal case showed that he was convicted of

conspiracy to possess with intent to distribute 1,000 kilograms or more of

marijuana. 9 See 8 C.F.R. § 1287.6(a); see also INA § 240(c)(3)(B)(i), 8 U.S.C.


       8
           We reject Cover’s claim that 8 C.F.R. § 1287.6 is the only way to authenticate official
records.
       9
         Cover’s argument—that the conviction record submitted by the government was not
properly authenticated because it did not feature the seal of the court and was not attested to by
the district court judge—fails. His stance relies on 28 U.S.C. § 1738, which is applicable only to
judgments from courts of a “State, Territory, or Possession” of the United States, whereas the
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§ 1229a(c)(3)(B)(i) (stating that a certified official record of judgment and

conviction “shall constitute proof of a criminal conviction”). Further, Cover

admitted his guilty plea multiple times. 10 We cannot say that the record compels

reversal of the BIA’s determination that the government’s evidence established

Cover’s removability.

                                    V. DUE PROCESS

        “To establish due process violations in removal proceedings, aliens must

show that they were deprived of liberty without due process of law, and that the

asserted errors caused them substantial prejudice.” See Lonyem v. U.S. Att’y

Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003).

A.     Evidence Produced Following March 2012 BIA Remand

       Cover argues that his due process rights were violated by the IJ holding a

second hearing after the BIA’s March 2012 remand. He contends that the IJ




conviction at issue was in a federal district court. Similarly, his argument that additional
certification was required because the document was submitted by electronic means is without
merit, because the document was certified by a court official as an official record from its
repository, as required by the relevant statutory provision. INA § 240(c)(3)(C), 8 U.S.C. §
1229a(c)(3)(C).
       10
          Cover also argues that his conviction may not be used as the basis for his removability
because it was obtained in violation of his constitutional rights. Cover may not collaterally
attack his underlying conviction in an immigration proceeding. See Mohammed v. Ashcroft, 261
F.3d 1244, 1251 (11th Cir. 2001) (stating that the 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).

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should have determined his removability based solely on the evidence presented

prior to the IJ’s first order of removal in October 2009. 11

       Under the circumstances of this case, the IJ was not barred from considering

the government’s evidence filed following the BIA’s March 2012 remand. 12 Cover

had admitted removability in his October 5, 2011 motion and his own attachments,

and thus, during the October 27, 2011 hearing, the government had no need to

present evidence establishing Cover’s removability.

       After the BIA’s March 2012 remand of Cover’s case, Cover moved to

withdraw his October 5, 2011 motion (admitting his alienage and conviction for a

deportable offense). After that motion was granted, it was only then that the

government had to introduce evidence to show Cover’s removability. At that

point, the IJ held a hearing on the sufficiency of the government’s evidence, and

the IJ found Cover removable. Therefore, Cover’s due process rights were not

violated by the IJ’s consideration of the government’s evidence presented after the

BIA’s March 2012 remand.

       11
          To the extent Cover argues that principles of collateral estoppel barred further
proceedings on removability, we reject his argument. Collateral estoppel only applies “when an
issue of ultimate fact has once been determined by a valid and final judgment.” United States v.
Valdiviez-Garza, 669 F.3d 1199, 1201 (11th Cir. 2012) (quotation marks omitted). The BIA’s
March 2012 remand order was not a final order, and in any event, the BIA did not decide the
issue of whether the government established that Cover was removable.
       12
         We acknowledge that, generally, following a remand from the BIA, an IJ “has authority
to consider additional evidence if it is material, was not previously available, and could not have
been discovered or presented at the former hearing.” In re M-D-, 24 I. & N. Dec. 138, 141 (BIA
2007).

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B.     Request for Subpoenas

       Cover also argues that the IJ violated his due process rights by not issuing a

subpoena to the AUSA involved in his criminal case.

       In an immigration proceeding, the IJ has “exclusive jurisdiction to issue

subpoenas,” and the IJ shall issue the subpoena “[u]pon being satisfied that a

witness will not appear and testify or produce documentary evidence and that the

witness’ evidence is essential.” 8 C.F.R. § 1003.35(b)(1), (3).

       Cover argues that the AUSA’s testimony was essential because it would

have shown that the AUSA told him that he would not be removed if he pled guilty

and that, because of that oral promise, he cannot be ordered removed.

       Here, there is no indication, much less evidence, that the Attorney General

delegated to the AUSA involved in Cover’s criminal case the power to make

promises regarding removability during the plea negotiations in Cover’s case. 13

See San Pedro v. United States, 79 F.3d 1065, 1071-72 (11th Cir. 1996) (holding

that (1) the Attorney General has the power to promise a criminal defendant during

plea negotiations that he will not be deported, (2) U.S. Attorneys and AUSAs have

the power to promise a criminal defendant non-deportation only where the

Attorney General has delegated that power, and (3) the Attorney General had not
       13
         Cover also argues, as he did below, that the BIA erred by not determining that the
government was estopped from removing him because of the prosecutor’s alleged promise.
However, that argument also hinges on the prosecutor’s ability to bind DHS with a promise, and
therefore, fails.


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delegated that power to U.S. Attorneys or AUSAs by way of the United States

Attorney’s Manual). Notably too, there is no such promise in Cover’s written plea

agreement, which states that it constitutes “the entire agreement” between the

parties.

       Therefore, Cover did not show that the AUSA’s testimony would have been

essential to the removal proceedings. Thus, it was not error for the IJs’ to refuse to

subpoena his witnesses, C.F.R. § 1003.35(b), and his due process rights were not

violated.14

                      VI. FIFTH AMENDMENT PRIVILEGE

       Cover argues that the BIA erred in relying on his statements to the IJ after he

invoked his Fifth Amendment privilege, admitting that he pled guilty in 2007 to a

criminal offense.

       The privilege afforded by the Fifth Amendment protects one from “being

involuntarily called as a witness against himself in a criminal prosecution but also

privileges him not to answer official questions put to him in any other proceeding,

civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” United States v. Lopez-Garcia, 565 F.3d 1306, 1316

(11th Cir. 2009) (quotation marks omitted).
       14
          Cover also sought to have his former attorneys testify that they told him that he would
not be removed if he pled guilty. This evidence was relevant to Cover’s ineffective assistance of
counsel claim. As discussed above in footnotes, a petitioner cannot collaterally attack his
conviction in immigration proceedings. Thus, Cover has not shown that this evidence was
essential.
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      Here, it is unclear to what extent, if any, the BIA relied on Cover’s

statements, made after he invoked his Fifth Amendment rights, in affirming the

IJ’s removal order. In any event, Cover has not shown how his admission of his

alienage or of his 2007 conviction would have exposed him of criminal liability,

and thus, he was has not shown that he was entitled to invoke his Fifth Amendment

privilege. See id. Moreover, there was substantial evidence to support a finding of

removability, even without considering statements Cover made in his removal

proceedings after invoking the Fifth Amendment, such that any error was harmless.

                              VII. CONCLUSION

      For the foregoing reasons, we deny Cover’s petition for review.

      PETITION DENIED.




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