[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-13136

Non-Argument Calendar

________________________

Agency No. A207-160-712

ERICK ALAN CRUZ-VALDEZ, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(October 1, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

Case: 18-13136 Date Filed: 10/01/2019 Page: 1 of 11 
2

Erick Cruz-Valdez petitions for review of the Board of Immigration 

Appeals’ (“BIA”) decision affirming the immigration judge’s removal order. After 

careful consideration, we deny his petition for review. 

I.

Erick Cruz-Valdez is a 27-year old native and citizen of Mexico who arrived 

in the United States when he was fifteen years old. He earlier received Deferred 

Action for Childhood Arrivals (“DACA”) protection. However, Cruz-Valdez’s 

DACA status was revoked after he was arrested on September 17, 2017, for 

driving under the influence. The day after his arrest, the Department of Homeland 

Security (“DHS”) served him with a Notice to Appear (“NTA”), charging him with 

being removable for staying in the United States without admission or parole and 

for lacking a valid visa or other entry document at the time of his application for 

admission. The NTA ordered him to appear at an address “to be set” and at a date 

and time “to be set.” Cruz-Valdez refused to sign the NTA. The Executive Office 

for Immigration Review eventually sent Cruz-Valdez a Notice of Hearing on 

October 3, 2017, which notified him that his hearing would take place in Pompano 

Beach, Florida at 8:00 AM on October 5, 2017.

Cruz-Valdez, represented by counsel, appeared before the immigration judge 

(“IJ”) on October 5, 2017. Counsel acknowledged proper service of the NTA and 

made no mention of the missing date, time, and location on the form. Counsel also 

Case: 18-13136 Date Filed: 10/01/2019 Page: 2 of 11 
3

conceded Cruz-Valdez was removable as charged. The hearing was continued, so 

counsel could procure Cruz-Valdez’s arrest records for driving under the influence.

Two weeks later, Cruz-Valdez appeared at his hearing with a different 

attorney from the same law firm. Counsel again acknowledged proper service of 

the NTA and conceded Cruz-Valdez was removable as charged. Counsel informed 

the IJ that Cruz-Valdez intended to pursue withholding of removal and protection 

under the Convention Against Torture. The IJ ordered proceedings continued to 

give Cruz-Valdez some time to prepare his applications for relief.

On November 9, 2017, Cruz-Valdez, represented by new counsel, requested

and received two additional weeks to continue filling out his applications. He 

explained to the IJ that he terminated his previous counsel because he “tried to 

communicate with them,” but they “never answer[ed] the phone.” Proceedings 

were continued several more times after that. Cruz-Valdez’s final merits hearing 

was eventually scheduled for January 31, 2018, on his application for cancellation 

of removal. He did not submit an application for asylum, withholding of removal, 

or CAT withholding. 

On the day of the hearing, counsel informed the IJ that Cruz-Valdez fired 

her and submitted a motion to withdraw. Cruz-Valdez confirmed his wish to 

terminate counsel from his case because he was not happy with her representation. 

Before ruling on counsel’s motion to withdraw, the IJ asked Cruz-Valdez whether 

Case: 18-13136 Date Filed: 10/01/2019 Page: 3 of 11 
4

he understood he would “have to proceed with [his] case today.” The IJ also 

informed Cruz-Valdez that if he did not wish to proceed, he could voluntarily 

depart at his own expense. Cruz-Valdez replied that he wished “to continue on 

with [his] case.” The IJ then granted counsel’s motion to withdraw.

Shortly after, Cruz-Valdez again expressed his desire to “continue on with 

[his] case” because he “cannot return to [his] country.” The IJ explained that 

because Cruz-Valdez submitted only an application for cancellation of removal, his 

application had nothing to do with fear of returning. Cruz-Valdez responded that 

he thought the IJ had offered him “asylum” and he thought he would qualify for 

relief. The IJ told Cruz-Valdez he would not be eligible for asylum because he did

not file an application for asylum within one year of arriving in the United States 

but that he “would be eligible to seek withholding of removal, which is a much 

higher standard.” The IJ proceeded to explain the requirements for withholding of 

removal and offered to give Cruz-Valdez a withholding application if he wished to 

pursue it. The IJ also informed Cruz-Valdez he would continue to remain in 

custody without bond during the pendency of his application for withholding.

Cruz-Valdez asked in response whether applying for withholding of removal 

would “stop” his application for cancellation of removal. The IJ replied that the 

application for cancellation of removal was “all that[’s] pending.” Cruz-Valdez 

then told the IJ he wished to continue with his cancellation application and he 

Case: 18-13136 Date Filed: 10/01/2019 Page: 4 of 11 
5

understood his decision to proceed with cancellation of removal meant he would 

not be able to apply for withholding of removal after the conclusion of his 

cancellation proceedings.

Based on Cruz-Valdez’s statements, the IJ went forward with the merits 

hearing on Cruz-Valdez’s application for cancellation of removal. Cruz-Valdez 

testified he had one son, who was born in 2008 in the United States, although he 

was not listed as the father on the birth certificate. He said his mother, father, and 

five sisters still lived in Mexico. He testified he had committed four other traffic 

violations, in addition to his 2017 arrest for driving under the influence, during his 

time in the United States.

At the conclusion of Cruz-Valdez’s testimony, the IJ announced his decision 

to deny Cruz-Valdez’s application for cancellation of removal. The IJ found CruzValdez failed to establish the existence of a qualifying relative, because “there 

[was] no documentary evidence[] relating to the familial relationship of [CruzValdez’s] child and [Cruz-Valdez].” The IJ further found Cruz-Valdez failed to 

establish good moral character during his time in the United States due to his

previous encounters with law enforcement, including his arrest for driving under 

the influence, and several improperly filed tax returns. The IJ also found CruzValdez did not establish “the exceptional and extremely unusual hardship standard 

Case: 18-13136 Date Filed: 10/01/2019 Page: 5 of 11 
6

to be eligible for cancellation of removal.” The IJ then ordered Cruz-Valdez 

removed to Mexico.

Cruz-Valdez appealed to the BIA, arguing the IJ violated his due process 

rights by proceeding with a merits hearing on the same day his attorney withdrew. 

He also argued the IJ should have continued his hearing after he told the IJ that he 

feared returning to Mexico. The BIA dismissed the appeal and affirmed the IJ’s 

order of removal. The BIA found that because the IJ gave Cruz-Valdez three 

opportunities to find counsel, the IJ did not commit a due process violation by 

proceeding with the merits hearing following the withdrawal of Cruz-Valdez’s 

third attorney. For similar reasons, the BIA concluded the IJ had no obligation to 

continue proceedings on January 31, 2018, so Cruz-Valdez could find a new 

attorney, particularly since there were no allegations that any of the attorneys 

provided ineffective assistance. The BIA rejected Cruz-Valdez’s argument that the 

IJ “exhibited bias or otherwise did not act as a neutral arbiter” during the hearing.

Cruz-Valdez timely petitioned this Court for review.

II.

This Court determines its subject matter jurisdiction de novo. See GuzmanMunoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th Cir. 2013) (per curiam). We 

also review de novo constitutional claims and questions of law. See Zhou Hua Zhu 

v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). We review an IJ’s 

Case: 18-13136 Date Filed: 10/01/2019 Page: 6 of 11 
7

decision not to grant a continuance for abuse of discretion. See Zafar v. U.S. Att’y 

Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). Factual findings by the agency are 

reviewed for substantial evidence. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–

31 (11th Cir. 2006) (per curiam). We will reverse an agency’s factual findings 

only if “the evidence compels a reasonable fact finder to find otherwise.” Id.

(quotation marks omitted). 

III.

To begin, we reject Cruz-Valdez’s argument that jurisdiction did not 

properly vest over his removal proceedings because DHS served him with an NTA 

lacking the time, date, and location of his hearing.1

 As this Court recently held in 

Perez-Sanchez, neither the statute, 8 U.S.C. § 1229(a), nor the regulation, 8 C.F.R. 

§ 1003.14(a), create rules of jurisdictional significance. Perez-Sanchez, 2019 WL 

3940873, at *7. Thus, even though Cruz-Valdez’s NTA was deficient under 

§ 1229(a), see Perez-Sanchez, 2019 WL 3940873, at *4, that deficiency did not 

affect the agency’s exercise of jurisdiction over his removal hearing, and we deny 

his petition for review as to this claim. See id. at *7. “To the extent [Cruz-Valdez] 

1 We also reject the government’s argument that we do not have jurisdiction to review 

this claim because Cruz-Valdez failed to exhaust it before the agency. As we explained in PerezSanchez v. U.S. Attorney General, __ F.3d __, 2019 WL 3940873 (11th Cir. Aug. 21, 2019), 

Cruz-Valdez essentially argues “the agency never had jurisdiction over his removal proceedings 

to begin with,” which would render his final order of removal invalid. Id. at *3. This issue 

implicates this Court’s own jurisdiction, see 8 U.S.C. § 1252(a)(1), (b)(9), and “[w]e always 

have jurisdiction to determine our own jurisdiction,” Perez-Sanchez, 2019 WL 3940873, at *3 

(quotation marks omitted). 

Case: 18-13136 Date Filed: 10/01/2019 Page: 7 of 11 
8

argues he is nonetheless entitled to a remand because his NTA violated the 

agency’s claim-processing rules, we dismiss this part of his petition for lack of 

jurisdiction because he failed to exhaust the claim before the agency.” Id.

IV.

Cruz-Valdez next argues the BIA erred in rejecting his due process 

arguments. He argues the IJ violated his due process rights by conducting a merits 

hearing right after his attorney withdrew rather than continuing proceedings to give 

him time to procure the assistance of new counsel. This argument fails. 

“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.” Lonyem v. U.S. Att’y Gen., 

352 F.3d 1338, 1341–42 (11th Cir. 2003) (per curiam). It is well-established that 

noncitizens may waive their statutory right to counsel. See Cobourne v. INS, 779 

F.2d 1564, 1566 (11th Cir. 1986) (per curiam); see also Al Khouri v. Ashcroft, 362 

F.3d 461, 464 (8th Cir. 2004) (“[A]liens are free to waive their statutory right to 

counsel . . . .”). As long as that waiver was knowing and voluntary, no due process 

violation shall inhere. See Cobourne, 779 F.2d at 1566.

In this case, the IJ gave Cruz-Valdez the options of continuing his case to 

pursue withholding of removal, which would have given him time to procure 

counsel, or proceeding pro se on the merits of his cancellation of removal claim. 

Case: 18-13136 Date Filed: 10/01/2019 Page: 8 of 11 
9

Cruz-Valdez knowingly and voluntarily chose the second option. Contrary to 

Cruz-Valdez’s argument, he knew in advance of the hearing that counsel would no 

longer be representing him because he terminated her representation just before the 

hearing. Also, he did not oppose her motion to withdraw.2

 And there is no 

indication from the record that the IJ “bullied and confused” Cruz-Valdez into 

going forward with the merits hearing. Under these circumstances, we cannot say 

the IJ’s decision to proceed with Cruz-Valdez’s merits hearing deprived him of a 

fundamentally fair hearing. See Cobourne, 779 F.2d at 1566; see also Al Khouri, 

362 F.3d at 464 (concluding waiver of statutory right to counsel did not rise to the 

level of a due process violation). We therefore deny his petition for review as to 

this claim. 

V.

We similarly reject Cruz-Valdez’s argument that the IJ abused its discretion 

in failing to grant him a continuance.

A noncitizen seeking a continuance must establish good cause for the 

continuance. See 8 C.F.R. § 1003.29. The BIA found Cruz-Valdez did not have 

good cause for a continuance, and we discern nothing in the record that would 

2 Cruz-Valdez argues the BIA mischaracterized the facts when it said he fired three 

attorneys. We agree with him that his first two attorneys were part of the same firm, so he 

dismissed the services of two—not three—different lawyers. However, this does not change our 

analysis of his due process claim. Regardless of how many attorneys he terminated, the record 

reflects Cruz-Valdez knowingly and voluntarily chose to continue pro se with his cancellation of 

removal merits hearing rather than request a continuance. 

Case: 18-13136 Date Filed: 10/01/2019 Page: 9 of 11 
10

compel a contrary conclusion. See Chen, 463 F.3d at 1230–31. Not only did 

Cruz-Valdez not ask for a continuance, he told the IJ he wanted to proceed with his 

merits hearing. Beyond that, as the BIA pointed out in its decision, Cruz-Valdez 

procured the services of several attorneys, and he has not alleged any were 

ineffective. We therefore conclude the IJ did not abuse its discretion in failing to 

grant Cruz-Valdez a continuance, and we deny his petition for review as to this 

claim. See, e.g., Belachew v. U.S. Att’y Gen., 385 F. App’x 924, 925 n.2 (11th 

Cir. 2010) (per curiam) (unpublished) (“Because Belachew did not request a 

continuance, she did not show good cause for the IJ to grant her a continuance.”). 

VI.

Cruz-Valdez also argues that the BIA erred in finding the IJ “did not exhibit 

bias or otherwise act other than a neutral arbiter.” This argument is meritless. The 

record reflects that the IJ asked questions relevant to Cruz-Valdez’s cancellation of 

removal application and did not, as Cruz-Valdez asserts, act as prosecutor. The IJ 

was empowered to “interrogate, examine, and cross-examine the [noncitizen] . . . 

during the proceeding.” Marcano Rosas v. U.S. Att’y Gen., 263 F. App’x 792, 793 

(11th Cir. 2008) (per curiam) (unpublished) (citing 8 U.S.C. § 1229a(b)(1)). That 

is precisely what the IJ did here. Also meritless is Cruz-Valdez’s argument that the 

IJ’s failure to specify each article of evidence supporting the denial suggests the IJ 

was biased. The IJ was not required to list and discuss every single piece of 

Case: 18-13136 Date Filed: 10/01/2019 Page: 10 of 11 
11

evidence supporting his decision. See Tan v. U.S. Att’y Gen., 446 F.3d 1369, 

1376 (11th Cir. 2006). 

PETITION DENIED IN PART AND DISMISSED IN PART. 

Case: 18-13136 Date Filed: 10/01/2019 Page: 11 of 11