[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 11840 Non

- Argument Calendar

________________________

Agency No. A205

- 358

- 855

LEONARDO ESPARZA

- DIAZ , Petitioner,

versus U.S. ATTORNEY GENERAL, Respondent.

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

________________________ ( April 2, 2015 ) Before MARTIN , KRAVITCH and ANDERSON , Circuit Judges. PER CURIAM:

Case: 14-11840 Date Filed: 04/02/2015 Page: 1 of 92 Leonardo Esparza

- Diaz petitions t his c ourt to review the B oard of Immigration Appeals’ (BIA) final order affirming the I mmigration Judge’s (IJ) denial of his application for cancellation of removal , 8 U.S.C. § 1229b(B)

. For the reasons that follow, we deny the petition in part and dismiss it in part

. I. Esparza

- Diaz entered the United States without being admitted or paroled in 1989. 1 He eventually moved to Florida, where he was employed, paid taxes, got

ma rried, and had children. His parents came to the United States as lawful permanent residents in 2011. In 2012, the Department of Homeland Security issued Esparza

- Diaz a Notice to Appear, charging him as removable due to his illegal entry under 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing before an IJ, Esparza

- Diaz conceded his removability and applied for cancellation of removal. 2 T he government opposed relief from removal on the ground that Esparza

- Diaz was not eligible for cancellation because he had b een convicted of a disqualifying offense, specifically, a firearm offense. The evidence of Esparza

- Diaz’s conviction included documents from the Indian River County Sheriff’s Office indicating that Esparza

- Diaz had been

1 Esparza

- Diaz’s application for cancellation of removal indicates that he entered in 1989, but a handwritten note on the Notice to Appear states that he entered in 1999. Because the conviction about which Esparza

- Diaz argues occurred in 1995, we assume t he 1989 date is correct. 2 Esparza

- Diaz also applied for withholding of removal and relief from removal under the C onvention Against Torture , but this application is not before us and w e do not discuss it further.

Case: 14-11840 Date Filed: 04/02/2015 Page: 2 of 93 arrested in 1995 for carrying a con cealed weapon and selling or giving alcohol to a minor. The case was later transferred to the County Court of Indian River under a “felony reduction , ” and E sparza - Diaz was convicted of open carrying of a firearm. The IJ concluded that Esparza

- Diaz was in eligible for cancellation of removal based on this conviction

. The IJ then addressed Esparza

- Diaz’s counsel:

IJ: You agree with that? Counsel: I . . . . IJ: The

— for the legal position on, on, on the charge? And then is we pretermit, does he still wan t to continue with his withholding? Counsel: He doesn’t have relief, it’s just for withholding.

. . . Counsel: We’ll take an order. Based on this exchange, the IJ concluded that Esparza

- Diaz conceded he was ineligible for relief, and the IJ ordered his removal. Esparza

- Diaz appealed to the BIA. In his Notice of Appeal, he wrote It is Re s pondent’s position that the IJ erred as a matter of law in concluding that Respondent’s conviction for the offense of Possession of a Firearm made the respondent ineligible for the relief sought. A reading of the Statute by itself under the “categorical approach” is not sufficient to warrant a conclusion that Respondent’s conviction made him ineligible for the relief sought. The IJ erred in using the “categorical approach.” The “modified categorical approach” should have been used in this case. Then, i n his brief to the BIA, Esparza

- Diaz argued that the IJ “failed to do a proper analysis of the circumstances behind [his] conviction,” and “failed to

Case: 14-11840 Date Filed: 04/02/2015 Page: 3 of 94 analyze the sta tute to see if it indeed was a conviction pursuant to Section 237(a)(2)(C).” The BIA dismissed the appeal, finding that Esparza

- Diaz had not met his burden to show he was eligible for cancellation of removal. The BIA concluded , “It is undisputed that res pondent was convicted of carrying a concealed firearm,” and that Esparza

- Diaz did not argue that his conviction was not a firearm offense. Esparza

- Diaz now seeks review before this court. II. Th e government argues that Esparza

- Diaz failed to exhaust his claims before the BIA, thereby depriving us of jurisdiction to review his claim. Esparza

- Diaz contends that the BIA erred by affirming the IJ ’s decision because his 1995 conviction was not a disq ualifying firearm offense, as he was convicted under a divisible statute that contained both firearm offenses and non

- firearm offenses . He further contends that the IJ and BIA should have applied the law under IMMACT90, rather than IIRIRA, because his con viction pre

- dated IIRIRA. Finally, he states that he should not be penalized for the ineffective assistance of his counsel. I I I

.

Case: 14-11840 Date Filed: 04/02/2015 Page: 4 of 95 We review questions of our subject

- matter jurisdiction de novo

. Ruiz v. Gonzales , 479 F.3d 762, 765 (11th Cir. 2007). 3 We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect thereto. See 8 U.S.C. § 1252(d)(1); see also Amaya

- Artunduaga v. U

. S

. Att’y Gen. , 463 F.3d 1247, 1250 (11th Cir. 2006) (stating that, “absent a cognizable excuse or exception, [this Court] lack[s] jurisdiction to consider claims that have not been raised before the BIA”) (citations and quotation omitted ). To properly raise a claim before the BIA, the petitioner must mention the issue and discuss its merits, or at least contest the basis for the IJ’s decision. See Alim v. Gonzales , 446 F.3d 1239, 1253 (11th Cir. 2006) (concluding that the petitioner failed to exhaust his cancellation

- of

- removal claim because, in his appeal to the BIA, the petitioner “never discussed the merits of his application for cancellation of removal, let alone the IJ’s basis for denying it”). Our review of the Notice of Appeal a nd E sparza - Diaz’s brief to the BIA establish that Esparza

- Diaz sufficiently alleged the IJ’s error before the BIA

. Alim , 446 F.3d at 1253. Accordingly, we conclude that Esparza

- Diaz exhausted his argument that the IJ erred by finding he was ineligible for re lief based on his prior conviction.

3 By statute, our jurisdiction is limited. See 8 U.S.C. § 1252(a)(2)(C) . Nevertheless, we retain jurisdiction to consider questions of law such as the one raised here. See 8 U.S.C. § 1252(a)(2)(D). Case: 14-11840 Date Filed: 04/02/2015 Page: 5 of 96 IV

. Turning to the merits, w e will only review the BIA decision, except to the extent that it expressly adopts the IJ’s opinion, in which case we will also review the IJ’s decision. Al Najjar v. Ashcroft , 257 F.3d 1262, 1284 (11th Cir. 2001). If the BIA explicitly agrees with particular findin gs of the IJ, we review both the BIA’s and IJ’s conclusions regarding those issues. Ayala v. U.S. Att’y Gen ., 605 F.3d 941, 948 (11th Cir. 2010). In this case, the BIA expressly agreed with the IJ’s conclusion that Esparza

- Diaz had been convicted of a d isqualifying firearm offense. Accordingly, we will review both opinions. We review de novo questions of la w. Accardo v. U.S. Att’y Gen. , 634 F.3d 1333, 1335

- 36 (11th Cir. 2011). Review of a removal order is conducted only on the administrative record on which the removal order is based , and we lack the authority to remand a case to the BIA to consider new ev idence. See 8 U.S.C. § 1252(a)(1) and (b)(4)(A); Al Najjar , 257 F.3d at 1278

- 79, 1281 (stating the general rule that appellate courts “may not go outside of the administrative record” and explaining that the c ourt is statutorily precluded from remanding t o the BIA for consideration of new evidence). Moreover, Esparza

- Diaz argues for the first time in his reply brief that we should remand for consideration of new evidence. We do not consider arguments raised for th e first time in a reply brief. Big Top K oolers, Inc. v. Circus

- Man Snacks, Inc. , 528 F.3d 839, 844 (11th Cir. 2008).

Case: 14-11840 Date Filed: 04/02/2015 Page: 6 of 97 The IJ’s factual determinations are reviewed under a substantial evidence standard, and we will affirm the IJ’s decision so long as it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. De Santamaria v. U.S. Att’y Gen. , 525 F.3d 999, 1006 (11th Cir. 2008). Under this test, the IJ’s decision ca n be reversed only if the record compels a reasonable fact finder to conclude otherwise. Id. The Attorney General may cancel removal of a non

- permanent resident alien who is inadmissible or deportable if the alien meets certain conditions. Relevant to this case, Esparza

- Diaz must not have been convicted of one of the enumerated offenses

. 8 U.S.C. § 1229b(b)(1). The enumerated disqualifying offenses include any conviction “under any law of purchasing, selling, of fering for sale, exchanging, using, owning, possessing, or carrying

. . . any weapon, part, or accessory which is a firearm.” 8 U.S.C. §§ 1227(a)(2), 1129b(b)(1)(C). A respondent “charged with deportability shall be found to be removable if the Service p roves by clear and convincing evidence that the respondent is depo rtable as charged.” 8 C.F.R. § 1240.8(a). When requesting relief from removal, the respondent bears the burden of proving his eligibility for relief. 8 C.F.R. § 1240.8(d). Here, the go vern ment submitted records from state and county courts showing that Esparza

- Diaz was initially charged with carrying a concealed weapon

Case: 14-11840 Date Filed: 04/02/2015 Page: 7 of 98 and that the case was transferred to county court where he was sentenced for open carrying of a firearm. Esparza

- Diaz did not present any evidence to the IJ or to the BIA challenging this finding. In fact, at no time before the IJ or BIA did he even identify the Florida Statute under which he was convicted. 8 U.S.C. § 1252(a)(1) and (b)(4)(A); Al Najjar , 257 F.3d at 127 8

- 79, 1281. Accordingly, any new evidence regarding his statute of conviction is not properly before us. The BIA adopted the IJ’s conclusion that Esparza

- Diaz had previously been convicted of a disqualifying firearm offense, and this conclusion was supported by substantial evidence. T he sheriff’s office and court documents demonstrat e that Esparza

- Diaz had been charged with and convicted of a firearm

- related o ffense

. Th e IJ and BIA found that Esparza

- Diaz conceded through counsel that his prior conviction constituted a disqualifying offense , and Esparza

- Diaz has never argued that he was not convicted of a firearms offense

. 4 T he record does not compel a

reason able factfinder to conclude otherwise. De Santamaria , 525 F.3d at 1006. As such, this claim does not present a basis for us to grant Esparza

- Diaz ’s petition for review. 5

4 Based on the exchange between the IJ and Esparza

- Dia z’s counsel, we are not convinced that counsel conceded Esparza

- Diaz’s ineligibility. But we note that Esparza

- Diaz has never argued that he was not convicted of a firearms offense , nor has he challenged the IJ’s and BIA’s finding that he conceded ineligi bility . Rather, his arguments have challenged the sufficiency of the evidence before the IJ and the manner of the IJ’s analysis.
5 E ven if we were to review the conviction using the modified categorical approach, we would reach the same conclusion as th e IJ and BIA. See Donawa v. U.S. Att ’ y Gen. , 735 F.3d 1275,

Case: 14-11840 Date Filed: 04/02/2015 Page: 8 of 99 V

. Finally, b efore the BIA, Esparza

- Diaz did not raise his claims regarding ineffective assistance of counsel, that IIRIRA d oes not apply because he was convicted prior to the date of its enactment, or that the statute under which he was convicted was divisible. Thus, these unexhausted claims are not properly before

us. Amaya

- Artunduaga , 463 F.3d at 1250. PETITION DENIED in part, DISMISSED in part .

1280 (11th Cir. 2013) (applying modified approach to divisible statute). The record of conviction clearly indicates that Esparza

- Diaz was convicted of and sentenced for open carrying of a firearm. There can be little dispute that such an offense qualifies as a firearm offense und er 8 U.S.C. §§ 1227(a)(2), 1129b(b)(1)(C).

Case: 14-11840 Date Filed: 04/02/2015 Page: 9 of 9