Kevin David Johnson v. U.S. Attorney General, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

J u ly 21, 2006

N o . 05-16612 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

B IA No. A41-652-288

K E V IN DAVID JOHNSON,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(J u ly 21, 2006)

B efo re TJOFLAT, BLACK and BARKETT, Circuit Judges.

P E R CURIAM:

P etitio n er is a native and citizen of Jamaica. He was admitted into the

U n ited States as a lawful permanent resident on April 24, 1998. On February 8, 2 0 0 5 , he was convicted of possession of cocaine in a Florida circuit court and s en te n c ed to drug offender probation for three years. In a Notice to Appear filed o n May 31, 2005, petitioner was charged with removability pursuant to (1) Im m ig ratio n and Naturalization Act ("INA") § 237(a)(2)(A)(iii), 8U.S.C.

§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in IN A § 101(a)(43)(B), 8U.S.C. § 1101(a)(43)(B), an offense relating to the illicit traffick in g in a controlled substance, and (2) INA § 237(a)(2)(B)(i), 8U.S.C. § 1 2 2 7 (a)(2 )(B )(i), as an alien convicted of a controlled substance.

Petitioner appeared as required on June 7, 2005. Petitioner told the Im m ig ratio n Judge ("IJ") that he had an attorney, but that the attorney could not be th e r e. At petitioner's request, the IJ rescheduled the hearing. The IJ rescheduled th e hearing for the same reason ­ failure of counsel to appear ­ on two subsequent o c c as io n s . At the fourth hearing, convened on July 19, 2005, petitioner told the IJ th a t he had an attorney, but was trying to hire another attorney and needed more tim e . The IJ, in response, said "we've been playing with the attorney game for a lo n g time. So, I'm going to proceed." D u rin g the hearing, petitioner admitted the factual allegations contained in th e Notice to Appear, including his February 8, 2005 conviction for possession of co cain e, and conceded both charges of removability. At the conclusion of the h earin g , the IJ ordered petitioner removed.

Petitioner, represented by counsel, appealed the order to the Board of Im m ig ratio n Appeals ("BIA"), contending that the IJ erred in going forward with th e removal hearing after he stated that he had an attorney. On November 7, 2005, th e BIA issued a decision dismissing the appeal. In its decision, the BIA noted that th e IJ held the July 19 hearing without petitioner having explicitly waived his right to counsel, but found that the IJ's action in going forward with the hearing had c au s e d petitioner no prejudice. The BIA found no prejudice because petitioner was affo rd ed a fair hearing and admitted both charges of removability. Petitioner now seek s review of the BIA's decision in this court.

Petitioner contends that this court has jurisdiction to review his petition b e c au s e he raises a constitutional claim, namely, a due process claim. The IJ d en ied him due process by holding the hearing in counsel's absence and without o b tain in g petitioner's knowing and voluntary waiver of his right to the presence of c o u n s e l.

As an initial matter, we must address our jurisdiction to review this petition.

Concluding that jurisdiction is present, we move in due course to petitioner's due p ro cess claim.

I.

I t is clear that we lack jurisdiction "to review any final order of removal a g a in s t an alien who is removable by reason of having committed a criminal o ffen se covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . ." See 8U.S.C. § 1252(a)(2)(C). Thus, we are without jurisdiction to r ev ie w the instant removal order based on petitioner's conviction of an aggravated felo n y under 8U.S.C. § 1227(a)(2)(A)(iii). We do have limited jurisdiction, th o u g h , to review whether the petitioner is "(1) an alien (2) who is removable (3) b ased on a conviction for an aggravated felony." Del Pilar v U.S. Att'y Gen., 326 F .3 d 1154, 1157 (11th Cir. 2003). Petitioner does not dispute that he is an alien w h o is removable for having been convicted of an aggravated felony. Thus, after o b serv in g this, our jurisdiction under § 1252(a)(2)(C) ends.

D esp ite the jurisdictional limitations of § 1252(a)(2)(C), nothing in § 1252 p reclu d es our review of constitutional claims or questions of law raised in a p ro p er ly filed petition for review. 8U.S.C. § 1252(a)(2)(D); Balogun v. U.S. Att'y G en ., 425 F.3d 1356, 1359 (11th Cir. 2005) (holding that the REAL ID Act gave th is court jurisdiction to review a criminal alien's petition for review of an order of rem o v al raising a question of law). In short, we have jurisdiction to review the in s ta n t petition to the extent that it presents the constitutional argument that p etitio n er was deprived of due process of law. See Balogun, 425 F.3d at 1360.

II.

P etitio n er asserts that the IJ denied him due process by not granting a co n tin u an ce. As noted above, the IJ granted three continuances to allow him to o b ta in counsel. After affording him these continuances and without petitioner h a v in g shown that circumstances had changed, we could hardly say that the IJ ab u sed his discretion in denying still another continuance. See Zafar, 426 F.3d at 1336 (finding no abuse of discretion when it was clear that the petitioner would n o t succeed in the endeavor­changing his immigration status­for which he sought th e continuance). Moreover, as will be shown below, even if the IJ had granted the co n tin u an ce and petitioner's counsel had been present, the outcome would not have b een different. Accordingly, the only additional issue properly before us is the B IA 's denial of petitioner's due process claim.

A removal proceeding such as the one at hand is a civil proceeding. Hence, th e alien is not entitled to a Sixth Amendment right to counsel. He does, however, h av e the right under the Fifth Amendment Due Process Clause to a fundamentally fair hearing and to effective assistance of counsel where counsel has been obtained.

Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005). "To establish d u e process violations in removal proceedings, aliens must show that they were d e p r iv e d of liberty without due process of law, and that the asserted errors caused th em substantial prejudice." Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1341-42 (1 1 th Cir. 2003).

In this case, petitioner fails to make out a due process violation because he su ffered no prejudice. He conceded the facts stated in the Notice to Appear, and th e brief his attorney submitted to the BIA conceded that petitioner was convicted o f an aggravated felony. Petitioner did not argue before the BIA, nor does he make an y argument here, that he suffered any prejudice. In sum, he fails to demonstrate th at the presence of counsel at his removal hearing would have affected the o u tco m e of the proceeding.

PETITION DENIED.

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