Boyd Campbell v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12577
Non-Argument Calendar
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Agency No. A099-314-862
BOYD CAMPBELL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 19, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Boyd Campbell, a citizen and native of Jamaica, seeks review of the Board
of Immigration Appeals’ (“BIA”) order denying his second motion to reopen his
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removal proceedings. He argues the BIA abused its discretion by finding that his
motion was both number and time barred and asserts he should be entitled to
equitable tolling due to ineffective assistance of counsel. He also argues the BIA
erred in finding that he was not prejudiced. After careful consideration, we
conclude we must deny Campbell’s petition.
I
Campbell entered the United States on a temporary visa in 1996. He
overstayed his visa and, in 2003, was arrested for drug trafficking. Campbell
ultimately received a sentence of time served and supervised release. The
government originally applied for an S-1 visa on Campbell’s behalf, which would
have allowed him to stay in the United States. However, the application was
withdrawn after Campbell was arrested in 2010 for attempted solicitation.1
In 2011, Campbell was arrested and taken into custody by Immigration and
Customs Enforcement (“ICE”). He was placed in removal proceedings, with ICE
alleging that he was removable for (1) overstaying his visa; (2) having been
convicted of an aggravated felony (trafficking controlled substances); and (3)
possession of marijuana. Campbell conceded removability on all grounds.
1 Campbell challenged the withdrawal of the S-1 visa application, arguing it was in
breach of his agreement with the government. The district court that sentenced Campbell
rejected this argument, because it found the plea agreement contained no promises to provide or
support a visa application.
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Campbell thereafter filed a pro se application for asylum and withholding of
removal, asserting that he would face grave danger if deported to Jamaica after his
work with the United States government. Campbell then retained his first attorney,
Latangie Williams, to represent him in removal proceedings.
At a hearing before the Immigration Judge (“IJ”), Williams withdrew
Campbell’s application for asylum, statutory withholding of removal, and relief
under the Convention Against Torture (“CAT”), based on her assessment that
Campbell could not make the showings required for relief. The IJ accepted the
withdrawal and ordered Campbell removed to Jamaica in 2011. Williams
subsequently filed two requests for deferred action with ICE, which were denied in
2011 and 2012, respectively.
In 2015, Campbell retained a second attorney, Ming Lin, who filed a
successful application for a temporary stay of removal. In 2017, Lin filed a motion
to reopen removal proceedings so that Campbell could seek CAT protection. Lin
provided evidence of Campbell’s previous work with the federal government,
Campbell’s fear of being killed by a gang member now residing in Jamaica if
deported, and argued that the Jamaican authorities would not be able to protect
Campbell if he were deported. Lin also included a 2012 letter from the Jamaican
Consul in which it said Campbell would be in danger if deported because he had
testified during the trial of Jamaican drug traffickers. The IJ denied the motion to
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reopen on the merits, finding that the evidence provided was insufficient to support
CAT relief. The BIA affirmed on appeal, reasoning that to show entitlement to
CAT relief, Campbell had to show both a credible threat of harm from his co-
defendants and the Jamaican government’s acquiescence in the torture. The BIA
said Campbell failed to show the latter.
On December 23, 2019, Campbell filed a second motion to reopen, this time
represented by a third attorney, Gregory Copeland. This second motion to reopen
was filed eight years after the August 30, 2011 order of removal, well past the 90-
day statutory period for filing a motion to reopen.2 Campbell argued, however,
that he was entitled to equitable tolling, which typically requires the noncitizen to
show that: (1) he has been pursuing his rights diligently; and (2) some
extraordinary circumstance stood in his way. Lin v. U.S. Att’y Gen., 881 F.3d
860, 872 (11th Cir. 2018). Specifically, Campbell argued he was entitled to such
tolling because both of his previous attorneys, Williams and Lin, provided
ineffective assistance of counsel.3
2 See 8 U.S.C § 1229a(c)(7)(C)(i); see also Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d
1357, 1359–65 (11th Cir. 2013) (en banc) (per curiam) (holding that the time bar on motions to
reopen is a non-jurisdictional claim-processing rule and is subject to equitable tolling).
3 A noncitizen may move to reopen his removal order based on ineffective assistance of
counsel. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005) (per curiam). We
also have suggested that ineffective assistance of counsel may serve as a basis for equitable
tolling. Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013).
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The BIA denied Campbell’s second motion to reopen. It found the second
motion was both time and number barred and that Campbell failed to meet the
requirements for equitable tolling. Namely, the BIA found Campbell failed to
perfect the requirements for asserting an ineffectiveness claim against his second
attorney and therefore was not entitled to equitable tolling of the time between the
first motion to reopen in 2017 and the second in 2019. The BIA also found
Campbell failed to show prejudice or entitlement to CAT relief on the merits.
Campbell petitioned this Court to review the BIA’s denial of the second
motion to reopen.
II
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam). This
review is limited to determining whether the BIA’s exercise of its discretion was
arbitrary or capricious. Id. An agency action is arbitrary and capricious where:
(1) the agency relied on factors which Congress has not intended it to
consider, (2) the agency failed to consider an important aspect of the
problem, (3) the agency explained its decision in a way that runs
counter to the evidence, or (4) the action is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.
Mendoza v. Sec’y, Dep’t of Homeland Sec., 851 F.3d 1348, 1353 (11th Cir. 2017)
(per curiam) (quotation marks omitted).
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III
For Campbell to be entitled to equitable tolling for ineffectiveness assistance
of counsel, he must show prejudice and compliance with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled on
other grounds by Matter of Compean, 24 I. & N. Dec. 710, 710 (BIA 2009), as to
both of his previous attorneys, Williams and Lin.4 See Dakane, 399 F.3d at 1274.
Lozada requires
(1) that the motion be supported by an affidavit of the allegedly
aggrieved respondent setting forth in detail the agreement that
was entered into with counsel with respect to the actions to be
taken and what representations counsel did or did not make to the
respondent in this regard, (2) that counsel whose integrity or
competence is being impugned be informed of the allegations
leveled against him and be given an opportunity to respond, and
(3) that the motion reflect whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation
of counsel’s ethical or legal responsibilities, and if not, why not.
Id. (quoting Lozada, 19 I. & N. Dec. at 639).
4 Campbell argues for the first time in reply that he need not comply with the Lozada
requirements as to his second attorney, because as long as he shows his first attorney was
ineffective, he should be entitled to equitable tolling. However, arguments raised for the first
time in reply are deemed abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682–
83 (11th Cir. 2014). We therefore assume he must perfect as to both.
We have also suggested the one-motion rule, see 8 U.S.C. § 1229a(c)(7)(A), is a “non-
jurisdictional claim processing rule subjected to equitable tolling.” Ruiz-Turcios, 717 F.3d at
850 (leaving to the BIA to address the issue in the first instance). Because this point is not
disputed by the parties, we assume without deciding that the second motion is subject to
equitable tolling, because Campbell’s petition would be denied regardless.
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Here, the BIA found that Campbell perfected the Lozada requirements as to
his first attorney but not his second. Campbell met all three Lozada requirements
as to his first attorney, Williams, by: (1) providing an affidavit detailing the
deficiencies in representation; (2) emailing Williams about the deficiencies and
giving her an opportunity to respond; and (3) filing a bar complaint against
Williams. As to his second attorney, Lin, Campbell provided an affidavit
regarding the deficiencies in representation. But he did not file a bar complaint
against Lin and has not explained why he has not done so, as required by the third
Lozada factor. And it does not appear that Campbell provided Lin notice and an
opportunity to respond to any charges of ineffective assistance, as required by the
second Lozada factor. Instead, the record reflects that Campbell merely emailed
his second counsel to ask whether he had alleged ineffective assistance of counsel
against the first counsel, and not to alert the second counsel that he too faced a
claim of ineffectiveness.5 Of course, we have suggested that substantial, rather
than exact, compliance with the procedural requirements of Lozada is sufficient.
See Point du Jour v. U.S. Att’y Gen., 960 F.3d 1348, 1350 (11th Cir. 2020), cert.
5 Along with the petition, Campbell moved to correct the administrative record to include
the unobscured email exchange between his current counsel and Lin. Because we conclude his
petition fails regardless, Campbell’s motion to correct the record and the government’s motion to
strike are DENIED as moot.
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denied sub nom. Sylvestre Esteeven Point du Jour v. Garland, 141 S. Ct. 1692
(2021). But Campbell’s compliance has been neither exact nor substantial.
On this record, the BIA did not abuse its discretion in denying the second
motion to reopen, as Campbell failed to meet the requirements for equitable
tolling. As such, we need not consider the remaining arguments regarding
prejudice.
PETITION DENIED.
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