NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 22-3469 ___________ CLEON AINSWORTH SAMUELS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A087-202-440) Immigration Judge: Kuyomars Golparvar __________________ Submitted Pursuant to Third Circuit LAR 34.1(a) June 14, 2023 Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges (Opinion filed: June 16, 2023) ___________ OPINION * ___________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Cleon Samuels has filed a petition for review (PFR) to challenge a decision of the Board of Immigration Appeals (BIA) that denied his motion to reopen proceedings before the agency. The PFR will be denied. I. Samuels is a citizen of Jamaica who entered the United States as a teenager and overstayed his tourist visa. Over a decade later, the Department of Homeland Security charged him with removability under 8 U.S.C. § 1227(a)(1)(B) (“Any alien who is present in the United States in violation of this chapter or any other law of the United States . . . is deportable.”). Through counsel (Gerald Grey), Samuels conceded the charge. The deadline set by the Immigration Judge (IJ) for Samuels to file applications for relief passed without any such filings. As a result, the IJ entered an order of removal, reasoning that Samuels had effectively abandoned any potential applications for relief. Still represented by Grey, Samuels then filed a motion to reopen backed by an excuse for the missed deadline. The motion was rejected because it was not accompanied by evidence of payment of the filing fee, so Samuels next filed a request for a fee waiver. But that request was rejected because it did not include proof of service. Samuels, through Grey, again tried to rehabilitate the motion. But his efforts were rejected as “illegible,” or lacking proof of service, or because Samuels was not eligible (and had not attached an application) for the underlying relief being sought. Soon after, Samuels terminated Grey’s representation and appealed the IJ’s latest order. The BIA: affirmed the IJ’s reopening ruling; construed part of Samuels’s appeal as 2 a motion to reopen based on ineffective assistance of counsel; determined that Samuels had not complied with the procedural requirements for ineffectiveness claims, under In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988); and denied reopening. Samuels retained pro bono counsel and filed another motion to reopen with the BIA, which was denied by decision dated December 20, 2022. The BIA determined that the new motion was time- and number-barred, and that equitable tolling was not warranted. The BIA acknowledged that Samuels was newly compliant with Lozada, but rejected the ineffectiveness claim because Samuels failed to show that he was prejudiced by Grey’s representation. Specifically, the BIA determined that any properly filed application for cancellation of removal would have been denied, either because Samuels failed …
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