Richard Smith v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1523
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RICHARD ALFANSO SMITH, AKA Alfonso Smith,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A041-307-911)
Immigration Judge: Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 16, 2020
Before: MCKEE, SHWARTZ, and RESTREPO, Circuit Judges
(Opinion filed January 13, 2021)
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OPINION*
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PER CURIAM
Richard Alfanso Smith petitions for review of a decision by the Board of
Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Smith, a citizen of Jamaica, was admitted to the United States in February 1987 as
a lawful permanent resident. In 2006, Smith was convicted of aggravated assault. He
also had prior convictions for trafficking cocaine and possession of marijuana. In
February 2016, Smith was charged as removable for, inter alia, having committed
aggravated felonies. He conceded removability on one aggravated felony and contested
another. An Immigration Judge (IJ) found him removable on both aggravated felony
charges.
Smith filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), alleging that if he returned to Jamaica,
he would be subjected to discrimination and violence for harboring his lesbian sister.
Based on Smith’s convictions for particularly serious crimes, the IJ determined that he
was only eligible for deferral of removal under the CAT. The IJ denied deferral of
removal, concluding that Smith could not demonstrate that it was more likely than not
that he would be subject to torture if he returned to Jamaica. The IJ also determined that
Smith was not eligible for cancellation of removal because he had been convicted of an
aggravated felony after being admitted as a lawful permanent resident. The BIA
dismissed Smith’s appeal in a decision dated June 22, 2017, and we dismissed his petition
for review for lack of jurisdiction. See C.A. No. 17-2540.
In August 2019, Smith was detained by immigration officials. In October 2019,
two years after the BIA’s 2017 decision, Smith filed a motion to reopen with the BIA.
He alleged that he received ineffective assistance of counsel from the attorney who
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represented him before the IJ. Smith claimed that his attorney was ineffective for failing
to advise him of his right to apply for a U-visa and a waiver of grounds of inadmissibility.
The BIA determined that the motion to reopen was untimely filed because Smith had not
demonstrated due diligence. Moreover, the BIA noted that Smith failed to comply with
the procedural requirements for an ineffective assistance of counsel claim set forth in In
re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Smith filed a timely petition for review.
The Government has filed a motion to dismiss the petition for lack of jurisdiction.
Because Smith is removable as an aggravated felon, the Government is correct that the
Court lacks jurisdiction to review the denial of his claims for relief except for legal and
constitutional claims. See 8 U.S.C. § 1252(a)(2)(C)&(D). In his brief, Smith argues for
the first time that he is not removable based on recent opinions we have issued.
Normally, we would have jurisdiction to determine whether an alien is an aggravated
felon and, as a result, subject to § 1252(a)(2)(C). However, Smith has not exhausted
these new arguments before the BIA, and we lack jurisdiction to consider them. See 8
U.S.C. 1252(d)(1) (court may review final order of removal only if “the alien has
exhausted all administrative remedies available to the alien as of right”).
We now turn to Smith’s challenge of the BIA’s denial of his motion to reopen. As
a general rule, an alien may file only one motion to reopen and must do so within ninety
days of the date of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i).
While the deadline for motions to reopen may be equitably tolled on the basis of
ineffective assistance of counsel, equitable tolling is an extraordinary remedy. See
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Mahmood v. Gonzales, 427 F. 3d 248, 251, 253 (3d Cir. 2005). The alien must have
acted with due diligence. Id. at 252. As noted above, the BIA denied the motion to
reopen as untimely filed, determining that Smith did not show due diligence or comply
with the procedural requirements for an ineffective assistance of counsel claim set forth
in Lozada.
We have jurisdiction to review the BIA’s determination that Smith failed to show
due diligence. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020) (holding that the
phrase “questions of law” in § 1252(a)(2)(D), includes the application of a legal standard
to undisputed facts). Smith simply states that despite his due diligence, he did not learn
of his attorney’s alleged ineffectiveness until recently. He does not explain why he
waited two years to seek reopening. Moreover, while he argues that his counsel was
ineffective, he does not explain how he fulfilled the procedural requirements of Lozada
before the BIA.1 He suggests that the pandemic excuses the untimeliness of his
grievance against his attorney, but his motion to reopen was filed in October 2019, before
the pandemic began. Smith’s arguments that he was denied a fair hearing before the IJ
are not relevant to the BIA’s determination that his motion to reopen was untimely. The
BIA did not err in denying Smith’s motion to reopen.
1
Smith has submitted exhibits including complaint forms against his prior attorney. As
the forms are dated July 26, 2020, they were not before the BIA and are not part of the
administrative record. We may decide a petition for review based only on the
administrative record. See 8 U.S.C. § 1252(b)(4)(A).
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For the reasons discussed above, we will deny the petition for review. The
Government’s motion to dismiss and Smith’s renewed motion to stay his removal are
denied.
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