Lozano v. Garland

Case: 21-60742 Document: 00516488302 Page: 1 Date Filed: 09/28/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-60742 September 28, 2022 Summary Calendar Lyle W. Cayce Clerk Norma Luz Lozano, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A028 862 460 Before Barksdale, Higginson, and Ho, Circuit Judges. Per Curiam:* Norma Luz Lozano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her appeal from an order of the Immigration Judge (IJ) sustaining the charge of removability against her and denying her application for cancellation of * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60742 Document: 00516488302 Page: 2 Date Filed: 09/28/2022 No. 21-60742 removal under 8 U.S.C. § 1229b(a). She claims: the IJ and BIA erred by failing to follow the proper procedure in evaluating her application for cancellation of removal; and her due-process rights were violated when the IJ considered information not included in her Notice to Appear (NTA) when making his removability decision. Regarding her claim concerning cancellation of removal, our court lacks jurisdiction to review a denial of discretionary relief, including relief under § 1229b, except with respect to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1622– 23 (2022). Jurisdiction is, of course, reviewed de novo. Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001). Along that line, Lozano’s contention a particular inference should have been made about her state of mind during a drug-trafficking incident is a factual question; therefore, our court lacks jurisdiction to review the contention. Patel, 142 S. Ct. at 1623 (petitioner “may not bring a factual challenge to orders denying discretionary relief” under § 1252(a)(2)(B)). Her claim the IJ and BIA failed to properly consider and weigh certain factors in their equity evaluations likewise does not present a constitutional claim or question of law. E.g., Nastase v. Barr, 964 F.3d 313, 319–20 (5th Cir. 2020) (no jurisdiction to review BIA’s weight of equities or failure to consider certain facts). Lozano’s due-process claim is also reviewed de novo. E.g., Santos- Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020). In removal proceedings, “due process requires that an alien be provided notice of the charges against [her], a hearing before an executive or administrative tribunal, and a fair opportunity to be heard”. Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018). To prevail, Lozano must “make an initial showing of substantial 2 Case: 21-60742 Document: 00516488302 Page: 3 Date Filed: 09/28/2022 No. 21-60742 prejudice” which requires “a prima facie showing that the alleged violation affected the outcome of the proceedings”. Id. Lozano contends the IJ’s considering information, not included in …

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