Rodeney Faustin v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 2020
• Docket: 20-10682
• Status: Unpublished

Opinion

Case: 20-10682 Date Filed: 08/28/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10682 Non-Argument Calendar ________________________

Agency No. A208-919-216

RODENEY FAUSTIN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(August 28, 2020)

Before NEWSOM, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

Rodeney Faustin petitions for review of the Board of Immigration Appeals’s

denial of his motion to reconsider its decision to dismiss his appeal as untimely. We

deny his petition. Case: 20-10682 Date Filed: 08/28/2020 Page: 2 of 4

Faustin, a native and citizen of Haiti, was paroled into the United States in

February 2016. In June 2016, the government served him with a notice to appear,

alleging that he was removable because he did not possess valid entry or travel

documents. A few months later, Faustin applied for asylum, withholding of removal,

and relief under the Convention Against Torture, claiming that he was persecuted in

Haiti for his political affiliation. An immigration judge held a hearing on

October 16, 2018, denied Faustin’s applications, and ordered that he be removed to

Haiti. The written order told Faustin that he had the right to appeal and that his

appeal was due by November 15, 2018. The order was mailed to Faustin’s attorney

on October 17, 2018.

The board received Faustin’s notice of appeal on May 2, 2019. Faustin asked

the board to accept his late appeal, explaining in an affidavit that he tried in good

faith to file his appeal before the deadline but failed to do so because he was

unemployed, had “extreme financial hardship,” and could not find an attorney for a

reasonable fee. The board dismissed Faustin’s appeal as untimely, finding that the

statements in his affidavit were insufficient for the board to consider his appeal.

On September 12, 2019, Faustin moved the board to reconsider its dismissal.

He argued that his former counsel was ineffective and attached an affidavit that said

he paid an attorney to file his appeal but that the attorney had failed to do so.

Attached to the affidavit was a copy of a receipt for a $400 money order for

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“Immigration Svs. (Appeal)” from Faustin. The receipt was dated October 29, 2018.

The board denied Faustin’s motion because he had not: (1) complied with the

requirements for alleging an ineffective-assistance-of-counsel claim under Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) explained the inconsistencies

between the affidavit in his original appeal (where Faustin said he couldn’t afford

an attorney to timely appeal) and his motion for reconsideration (where he said that

he paid counsel but counsel ineffectively blew the deadline). Faustin, proceeding

pro se, now seeks review of the board’s denial of his reconsideration motion.

We review the board’s denial of a motion for reconsideration for an abuse of

discretion. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). “The

[board] abuses its discretion when it misapplies the law in reaching its decision” or

when it fails to follow its own precedents “without providing a reasoned explanation

for doing so.” Id.

Faustin contends that the board abused its discretion in denying his motion

because he presented evidence of an “exceptional circumstance”—ineffective

assistance of counsel—warranting the board’s consideration of his untimely appeal.

But the board may require aliens to allege the necessary facts under Matter of Lozada

before it considers a claim of ineffective assistance of counsel. See Gbaya v. U.S.

Att’y Gen., 342 F.3d 1219, 1222–23 (11th Cir. 2003) (affirming the board’s rejection

of the petitioner’s ineffective-assistance-of-counsel claim where the petitioner failed

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to comply with Matter of Lozada). In Matter of Lozada, the board held that a motion

for reconsideration must allege three elements to raise a viable ineffective-

assistance-of-counsel claim. 19 I. & N. Dec. at 639. First, the motion must be

supported by an affidavit detailing the agreement with counsel and describing the

ways in which counsel’s performance was defective. Id. Second, counsel must be

informed of the claim and given an opportunity to respond. Id. Third, the motion

must allege that a complaint has been filed against counsel with the appropriate

disciplinary body or it must explain why such a complaint was not filed. Id.

Here, Faustin failed to satisfy Matter of Lozada’s three requirements. Though

he claimed to have paid for an appeal, Faustin did not allege that he had an agreement

with an attorney and what that agreement was. Faustin also failed to show that he

provided the purportedly ineffective attorney with notice of his claim. And his

motion did not allege that he submitted a complaint with the appropriate disciplinary

body or provide an explanation for not doing so. Finally, Faustin did not explain the

inconsistency between the first affidavit—where he said his appeal was filed late

because he could not afford to have an attorney—and his second affidavit—where

he said his appeal was late because his attorney had been ineffective. Thus, the board

did not abuse its discretion when it denied Faustin’s motion for failing to comply

with Matter of Lozada. See Gbaya, 342 F.3d at 1222–23.

PETITION DENIED.