Filed: Oct. 20, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-4207 _ ANTHONY OLIVER CAMPBELL, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A205-526-016) Immigration Judge: Andrew Arthur _ Submitted under Third Circuit LAR 34.1(a) on July 10, 2015 Before: FUENTES, NYGAARD and ROTH, Circuit Judges (Opinion filed: October 20, 2015) _ OPINION* _ ROTH, Circuit Judge * This disp
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-4207 _ ANTHONY OLIVER CAMPBELL, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A205-526-016) Immigration Judge: Andrew Arthur _ Submitted under Third Circuit LAR 34.1(a) on July 10, 2015 Before: FUENTES, NYGAARD and ROTH, Circuit Judges (Opinion filed: October 20, 2015) _ OPINION* _ ROTH, Circuit Judge * This dispo..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 14-4207
________________
ANTHONY OLIVER CAMPBELL,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-526-016)
Immigration Judge: Andrew Arthur
________________
Submitted under Third Circuit LAR 34.1(a)
on July 10, 2015
Before: FUENTES, NYGAARD and ROTH, Circuit Judges
(Opinion filed: October 20, 2015)
________________
OPINION*
________________
ROTH, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Anthony Oliver Campbell appeals the Board of Immigration Appeals’ denial of
his motion to reopen proceedings due to the alleged ineffectiveness of his former counsel.
For the reasons stated below, we will deny the petition for review..
I. Background
Campbell is a citizen of Jamaica. In 2001, he came to the United States on a non-
immigrant F-1 student visa. He remained a student through 2008, finishing his Master’s
Degree in Business Administration. On September 14, 2012 Campbell received a Notice
to Appear, designating him eligible for removal for overstaying his student visa. On
March 8, 2013, DHS commenced removal proceedings against Campbell.
Campbell retained Kimberly Tomczak and her supervisor, Wayne Sachs, as
counsel. At the time, Campbell was engaged to Georgette Higgin, who was still married
to her former husband, though in the process of divorce. At an April 10, 2013 hearing,
counsel conceded the facts in the NTA and Campbell’s removability, but moved for a
continuance under Matter of Hashmi,1 to allow Campbell and Higgin to marry and apply
for an adjustment of status. Under Hashmi, an immigration judge should presumptively
continue a removal hearing if a prima facie approvable adjustment petition will be made
in the course of removal proceeding.2 The IJ denied the motion because Campbell was
not yet married and could not show a probability of being married soon, as his fiancée
was married to someone else. Moreover, the IJ noted that Campbell had a criminal
1
24 I. & N. Dec. 785 (BIA 2009).
2
Id. at 790.
2
record that included five convictions for driving under the influence, making it unlikely
that his application would “merit[s] a favorable exercise of discretion.”3
On July 10, 2013, Higgin filed a petition for an alien relative on behalf of her new
husband, Campbell. On August 7, 2013, counsel appealed Campbell’s case to the BIA
and moved to remand based on newly acquired evidence: the marriage. While the BIA
noted numerous factors in Campbell’s favor, such as continuous presence, completion of
several degrees, steady employment, and tax compliance, it felt that the criminal
history—specifically the five DUIs—was a serious adverse factor that “strongly
undermine[d] the likelihood that he would be granted adjustment of status as a matter of
discretion.”4 Accordingly, the BIA upheld the denial of a continuance because the
ultimate result would not change.
On February 19, 2014, USCIS granted Higgin’s petition for an alien relative,
entitling her husband to an immigrant visa. On March 31, 2014, counsel filed a motion
to reopen under 8 C.F.R. § 1003.2(a), stating that the grant of the visa petition on
February 19, 2014 constituted new evidence. On April 8, 2014, the BIA, treating the
untimely motion to reopen as a request to reopen sua sponte, denied the motion based on
the grounds that becoming potentially eligible for adjustment of status after a final order
was not uncommon, and did not establish exceptional circumstances to warrant
reopening.
3
See
id.
4
J.A. 39.
3
On April 24, 2014, Campbell retained new counsel and petitioned this Court for
review, arguing that his prior counsel was ineffective. Counsel had never advised
Campbell that he had prima facie eligibility to apply for cancellation of removal because
he had stayed in the country ten years,5 and Campbell argued that was prejudicial error.
Notably, Campbell did not claim that the application for cancellation of removal would
have been granted, but that the consideration of the application itself would have allowed
enough time for Higgin to finalize her divorce, marry Campbell, and file a visa petition
for him without need for the Hashmi motion. On July 23, 2014, we dismissed
Campbell’s motion for stay of removal because we lack jurisdiction over a decision by
the BIA not to reopen a case sua sponte.6
On July 24, 2014, Campbell moved to reopen his case in the BIA a second time,
on the same ineffective assistance grounds. On September 22, 2014, the BIA declined to
reopen the case, reasoning in part that Campbell’s motion was untimely and number-
barred,7 and that Campbell’s ineffective assistance argument failed. The ineffective
assistance claim assumed that after the delay created by the application for cancellation,
the IJ would have held for him on the merits. According to the BIA, however, the IJ had
already ruled on the merits, and the BIA had previously upheld that decision on the
merits. Consequently, Campbell “ha[d] not shown that, if he had applied for cancellation
of removal and obtained continuance, there was ‘reasonable likelihood that the result
5
See 8 U.S.C. § 1229b(b).
6
Campbell v. Attorney Gen., No. 14-2001 (3d. Cir. July 23, 2014) (citing Chehazeh v.
Attorney Gen.,
666 F.3d 118, 129 (3d Cir. 2012)).
7
See 8 C.F.R. § 1003.2.
4
would have been different.’”8 Campbell was subsequently removed to Jamaica, and he
now appeals the BIA’s decision.
II. Discussion
We review ineffective assistance of counsel claims in immigration proceedings
under a de novo standard.9 Our Court uses a two-part test to assess error and prejudice,
asking “(1) whether competent counsel would have acted otherwise, and, if yes, (2)
whether the alien was prejudiced by counsel’s poor performance.”10 “[A] showing of
prejudice requires a reasonable likelihood that the result would have been different.”11 A
motion to reopen, however, is reviewed for abuse of discretion,12 and a decision to deny
the motion will be upheld unless it is “arbitrary, irrational, or contrary to law.”13
Campbell makes two arguments regarding the alleged ineffective assistance of his
prior counsel. First, he argues that the BIA misapplied the prejudice standard, relying on
the BIA’s remark that “the Immigration Judge addressed the merits of his application for
adjustment of status, and found that he did not show that this application would be
granted in the exercise of discretion.”14 Campbell argues that this remark demonstrates
that the BIA required him to prove that a different outcome was certain, rather than
merely likely. Campbell takes this quotation entirely out of context. The IJ denied
Campbell’s Hashmi motion for two independent reasons: 1) the future marriage was
8
J.A. 2 (quoting Fadiga v. Attorney Gen.,
488 F.3d 142, 158 (3d Cir. 2007)).
9
Fadiga, 488 F.3d at 153-54.
10
Id. at 157 (internal quotations omitted).
11
Id. at 158 (internal quotations omitted).
12
Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d Cir. 2003).
13
Tipu v. I.N.S.,
20 F.3d 580, 582 (3d Cir. 1994).
14
J.A. 2.
5
speculative and 2) Campbell’s criminal record would prevent a favorable future exercise
of discretion. Campbell’s ineffective assistance argument addresses only the first point:
with better legal assistance he could have delayed, and with adequate delay, the marriage
would no longer have been speculative. But this point does not address his criminal
record. An adjustment of status is still discretionary,15 and the BIA’s remark simply
indicated that nothing about the delay would have made Campbell’s criminal record less
problematic to the IJ. The BIA’s first decision indicated as much when it declined to
remand because the result would not change.16 Thus, we find that no prejudice stemmed
from this alleged error.17
Second, Campbell argues that in his prior motion to reopen, counsel argued for the
wrong standard. Specifically, rather than applying Hashmi, counsel should have argued
for—and the BIA should have applied—the standard from Matter of L-O-G-.18 But
Campbell’s prior motion was untimely and number-barred, and L-O-G- did not address
those flaws.19 Moreover, the standard in L-O-G- also requires “a reasonable likelihood of
15
See 8 U.S.C. § 1255.
16
J.A 38 n.2.
17
Campbell also argues that his counsel’s error is compounded because if not for the
error he would not have faced forced removal, and would not have been statutorily
ineligible to return for ten years. See 8 U.S.C. § 1182 (a)(9)(A). But this argument
assumes its conclusion, that but for the error, he would have been able to adjust his status.
Moreover, as he was removed after his appeals, Campbell’s ineligibility did not factor
into any of the decisions below, making it irrelevant for prejudice regarding those
decisions.
18
21 I&N Dec. 413 (BIA 1996).
19
J.A. 3
6
success on the merits”20 to justify reopening a case, and as discussed above, Campbell
fails under that standard.
III. Conclusion
Campbell has not demonstrated that the there is a reasonable likelihood that he
would have succeeded. We will therefore deny the petition for review.
20
21 I&N Dec. at 420.
7