Case: 18-15235 Date Filed: 06/04/2020 Page: 1 of 8 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-15235 ________________________ Agency No. A096-143-564 SYLVESTRE ESTEEVEN POINT DU JOUR, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 4, 2020) Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges. TJOFLAT, Circuit Judge: Petitioner Sylvestre Point du Jour asks this Court to review an order of the Board of Immigration Appeals (“BIA”) dismissing Point du Jour’s appeal from an Immigration Judge’s order of removal, and denying Point du Jour’s motion for Case: 18-15235 Date Filed: 06/04/2020 Page: 2 of 8 remand based on a claim of ineffective assistance of counsel. The BIA denied Point du Jour’s ineffective assistance of counsel claim because he failed to satisfy one of three procedural requirements to bring such a claim, as established by the BIA’s decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d sub nom. Lozada v. Immigration and Naturalization Serv., 857 F.2d 10 (1st Cir. 1988). Point du Jour argues that he “substantially complied” with all three Lozada requirements and asserts that the BIA order did not offer a “reasoned consideration” of the evidence Point du Jour offered in support of his compliance. We are not persuaded and accordingly deny Point du Jour’s petition for review. We construe a motion to remand that seeks to introduce new evidence as a motion to reopen, denial of which is reviewed for an abuse of discretion. Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011). Motions to reopen are disfavored in removal proceedings because “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Immigration and Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724–25 (1992). Review by this court is limited to determining whether the BIA exercised its discretion in an “arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). In a deportation proceeding, the Fifth Amendment’s Due Process Clause gives an alien the right to effective assistance of counsel. Mejia Rodriguez v. 2 Case: 18-15235 Date Filed: 06/04/2020 Page: 3 of 8 Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). To establish the ineffective assistance of counsel in the context of a deportation hearing, an alien must establish that his or her counsel’s performance was deficient to the point that it “impinged the fundamental fairness of the hearing.” Id. (internal quotations omitted). The alien must show that counsel’s deficient performance was prejudicial to the outcome of the proceedings – in other words, it was “so inadequate that there is a reasonable probability that but for the attorney’s error, the outcome of the proceedings would have been different.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). We have held that the BIA may properly screen ineffective-assistance claims by using the three ...
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