NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1523 ___________ RICHARD ALFANSO SMITH, AKA Alfonso Smith, Petitioner v. ATTORNEY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) ___________ OPINION* ___________ 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 2 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 ...
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