[DO NOT PUBLISH]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 nonimmigrant 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).

10Cover 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. 

 11To 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. 

12We 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 

 13Cover 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). 

 14Cover 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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