Filed: Aug. 28, 2020
Latest Update: Aug. 28, 2020
Summary: Case: 20-10682 Date Filed: 08/28/2020 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10682 Non-Argument Calendar _ Agency No. A208-919-216 RODENEY FAUSTIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (August 28, 2020) Before NEWSOM, BRANCH, and LUCK, Circuit Judges. PER CURIAM: Rodeney Faustin petitions for review of the Board of Immigration Appeals’s denial
Summary: Case: 20-10682 Date Filed: 08/28/2020 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10682 Non-Argument Calendar _ Agency No. A208-919-216 RODENEY FAUSTIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (August 28, 2020) Before NEWSOM, BRANCH, and LUCK, Circuit Judges. PER CURIAM: Rodeney Faustin petitions for review of the Board of Immigration Appeals’s denial o..
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Case: 20-10682 Date Filed: 08/28/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10682
Non-Argument Calendar
________________________
Agency No. A208-919-216
RODENEY FAUSTIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 28, 2020)
Before NEWSOM, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Rodeney Faustin petitions for review of the Board of Immigration Appeals’s
denial of his motion to reconsider its decision to dismiss his appeal as untimely. We
deny his petition.
Case: 20-10682 Date Filed: 08/28/2020 Page: 2 of 4
Faustin, a native and citizen of Haiti, was paroled into the United States in
February 2016. In June 2016, the government served him with a notice to appear,
alleging that he was removable because he did not possess valid entry or travel
documents. A few months later, Faustin applied for asylum, withholding of removal,
and relief under the Convention Against Torture, claiming that he was persecuted in
Haiti for his political affiliation. An immigration judge held a hearing on
October 16, 2018, denied Faustin’s applications, and ordered that he be removed to
Haiti. The written order told Faustin that he had the right to appeal and that his
appeal was due by November 15, 2018. The order was mailed to Faustin’s attorney
on October 17, 2018.
The board received Faustin’s notice of appeal on May 2, 2019. Faustin asked
the board to accept his late appeal, explaining in an affidavit that he tried in good
faith to file his appeal before the deadline but failed to do so because he was
unemployed, had “extreme financial hardship,” and could not find an attorney for a
reasonable fee. The board dismissed Faustin’s appeal as untimely, finding that the
statements in his affidavit were insufficient for the board to consider his appeal.
On September 12, 2019, Faustin moved the board to reconsider its dismissal.
He argued that his former counsel was ineffective and attached an affidavit that said
he paid an attorney to file his appeal but that the attorney had failed to do so.
Attached to the affidavit was a copy of a receipt for a $400 money order for
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“Immigration Svs. (Appeal)” from Faustin. The receipt was dated October 29, 2018.
The board denied Faustin’s motion because he had not: (1) complied with the
requirements for alleging an ineffective-assistance-of-counsel claim under Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) explained the inconsistencies
between the affidavit in his original appeal (where Faustin said he couldn’t afford
an attorney to timely appeal) and his motion for reconsideration (where he said that
he paid counsel but counsel ineffectively blew the deadline). Faustin, proceeding
pro se, now seeks review of the board’s denial of his reconsideration motion.
We review the board’s denial of a motion for reconsideration for an abuse of
discretion. Ferreira v. U.S. Att’y Gen.,
714 F.3d 1240, 1243 (11th Cir. 2013). “The
[board] abuses its discretion when it misapplies the law in reaching its decision” or
when it fails to follow its own precedents “without providing a reasoned explanation
for doing so.”
Id.
Faustin contends that the board abused its discretion in denying his motion
because he presented evidence of an “exceptional circumstance”—ineffective
assistance of counsel—warranting the board’s consideration of his untimely appeal.
But the board may require aliens to allege the necessary facts under Matter of Lozada
before it considers a claim of ineffective assistance of counsel. See Gbaya v. U.S.
Att’y Gen.,
342 F.3d 1219, 1222–23 (11th Cir. 2003) (affirming the board’s rejection
of the petitioner’s ineffective-assistance-of-counsel claim where the petitioner failed
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to comply with Matter of Lozada). In Matter of Lozada, the board held that a motion
for reconsideration must allege three elements to raise a viable ineffective-
assistance-of-counsel claim. 19 I. & N. Dec. at 639. First, the motion must be
supported by an affidavit detailing the agreement with counsel and describing the
ways in which counsel’s performance was defective.
Id. Second, counsel must be
informed of the claim and given an opportunity to respond.
Id. Third, the motion
must allege that a complaint has been filed against counsel with the appropriate
disciplinary body or it must explain why such a complaint was not filed.
Id.
Here, Faustin failed to satisfy Matter of Lozada’s three requirements. Though
he claimed to have paid for an appeal, Faustin did not allege that he had an agreement
with an attorney and what that agreement was. Faustin also failed to show that he
provided the purportedly ineffective attorney with notice of his claim. And his
motion did not allege that he submitted a complaint with the appropriate disciplinary
body or provide an explanation for not doing so. Finally, Faustin did not explain the
inconsistency between the first affidavit—where he said his appeal was filed late
because he could not afford to have an attorney—and his second affidavit—where
he said his appeal was late because his attorney had been ineffective. Thus, the board
did not abuse its discretion when it denied Faustin’s motion for failing to comply
with Matter of Lozada. See
Gbaya, 342 F.3d at 1222–23.
PETITION DENIED.
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