United States Court of Appeals 

for the Fifth Circuit 

No. 21-60742 

Summary Calendar 

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opinion should not be published and is not precedent except under the limited 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. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 28, 2022 

Lyle W. Cayce 

Clerk 

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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., SantosAlvarado 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 

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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 her 

NTA, about her alleged involvement in certain drug-trafficking events 

resulted in her lacking notice of the charges she faced. The record, however, 

shows: the relevant supplementary exhibits were introduced at an initial 

hearing; and Lozano’s counsel conceded her removability based on the 

exhibits. Accordingly, the record does not support Lozano’s contention she 

lacked notice of the allegations against her. 

In the alternative, she also cannot make the requisite initial showing 

of substantial prejudice. A concession by counsel is binding in the absence of 

“egregious circumstances”, which Lozano has not alleged. Zhong Qin Yang 

v. Holder, 570 F. App’x 381, 383 (5th Cir. 2014) (quoting Matter of Velasquez, 

19 I. & N. Dec. 377, 382 (BIA 1986)). As noted, Lozano’s counsel conceded 

her removability on the grounds alleged in the NTA. She has not challenged 

this concession in our court. Because those grounds were enough to find her 

removable, she fails to make a prima facie showing the outcome of the 

proceedings would have been different but for the alleged violation. E.g.,

Okpala, 908 F.3d at 971. 

DISMISSED in part; DENIED in part. 

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