IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60916

Summary Calendar

ALICIA BRUMANT,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A045 171 891

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Petitioner, Alicia Brumant, a native and citizen of Dominica, seeks 

review of the Board of Immigration Appeals (BIA) order dismissing her appeal 

of an order of removal due to her prior conviction of a controlled substance 

offense. Brumant also petitions for review of the BIA’s order denying her 

motion to reconsider. Our jurisdiction is limited to colorable constitutional 

issues and questions of law. See 8 U.S.C. § 1252(a)(2)(C),(D) (providing that 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2015

Lyle W. Cayce

Clerk

 

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No. 13-60916

courts lack jurisdiction over final orders of removal against criminal aliens, 

except courts retain jurisdiction over constitutional claims or questions of law).

Brumant argues, in her initial and supplemental briefs, that the IJ and 

the BIA denied her due process by not considering and by not informing her of

the apparent forms of relief available to her. Brumant did not raise this due 

process argument before the BIA in her appeal or in her motion to reconsider. 

This issue raises a procedural error that could have been corrected by the BIA. 

See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). Thus, Brumant

has not exhausted her administrative remedies, and we do not have 

jurisdiction to consider this issue. See § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 

448, 452-53 (5th Cir. 2001).

In her supplemental brief addressing her motion to reconsider, Brumant 

argues that her due process rights were violated because she was denied a 

continuance to properly develop the record and proffer evidence that she has a 

case of prima facie eligibility for U.S. Citizenship by naturalization. She also 

asserts that she could have argued that she was not an arriving alien under 

Vartelas v. Holder, 132 S. Ct. 1479 (2012). In her motion to reconsider, 

Brumant did raise the issue of her potential eligibility for citizenship as a form 

of relief, and she asked the BIA to reconsider its decision and to remand the 

case to the IJ to allow her to properly request her relief options and to develop 

the record. Thus, this issue was exhausted by raising it in her motion to 

reconsider before the BIA. However, Brumant did not raise the arriving alien 

argument to the BIA, it is not exhausted, and we cannot consider it. See

§ 1252(d)(1); Wang, 260 F.3d at 452-53.

Whether Brumant was denied due process based on the BIA’s refusal to 

continue her case for further consideration of her alleged claim to citizenship 

is a claim which we may address. The BIA considered Brumant’s alleged 

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eligibility for naturalization and noted that it had no jurisdiction over 

applications for naturalization and saw no reason to terminate her removal 

proceedings on that basis because her conviction remained final for 

immigration purposes. The BIA cited Matter of Acosta Hidalgo, 24 I & N Dec. 

103 (BIA 2007), which held that neither the BIA nor the IJ had jurisdiction to 

determine an alien’s prima facie eligibility for naturalization in order to 

terminate removal proceedings. The BIA did not deny Brumant due process 

for denying her request to remand her case to the IJ for consideration of relief 

that neither the IJ nor the BIA have jurisdiction to consider. See RobertsonDewar v. Holder, 646 F.3d 226, 230-31 (5th Cir. 2011); Ogunfuye v. Holder, 610 

F.3d 303, 307-08 (5th Cir. 2010).

Brumant argues that she was entitled to counsel in her immigration 

proceedings under the Sixth Amendment, if necessary one appointed by the 

Government, according to Padilla v. Kentucky, 559 U.S. 356 (2010). She also 

contends that allowing her to proceed without counsel was a violation of due 

process under the Fifth Amendment. We address these issues.

Examining these constitutional claims de novo, we note our longstanding 

authority that aliens in immigration proceedings have no Sixth Amendment 

right to counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); 

Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001); Ogbemudia v. 

INS, 988 F.2d 595, 598 (5th Cir. 1993). However, the absence of counsel could 

have deprived Brumant of due process under the Fifth Amendment “if the 

defect impinged upon the fundamental fairness of the hearing . . . and there 

was substantial prejudice.” Ogbemudia, 988 F.2d at 598 (internal quotation 

marks and citations omitted). The IJ granted Brumant numerous 

continuances to obtain counsel, and the proceedings were not fundamentally 

unfair. See Ogbemudia, 988 F.2d at 599.

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Because we lack jurisdiction to review the final order of removal, and 

because Brumant has not raised any colorable constitutional claims, the 

petitions for review are dismissed. See Alwan v. Ashcroft, 388 F.3d 507, 515 

(5th Cir. 2004).

DISMISSED.

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