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 procedural requirements laid out in Lozada. Gbaya v. U.S. Att’y
Gen., 342 F.3d 1219, 1223 (11th Cir. 2003) (“The BIA does not abuse its
discretion by filtering ineffective assistance of counsel claims through the
screening requirements of Lozada . . . .”) The three-part Lozada test requires each
of the following: (1) that the motion be “supported by an affidavit of the allegedly
aggrieved respondent . . . . set[ting] forth in detail the agreement that was entered
into with former counsel” with respect to the actions to be taken and what
representations counsel did or did not make to the respondent in this regard, (2)
that “former counsel must be informed of the allegations and allowed the
opportunity to respond,” and (3) that the motion must “reflect whether a complaint
3 Case: 18-15235 Date Filed: 06/04/2020 Page: 4 of 8
has been filed with appropriate disciplinary authorities" with respect to any
violation of counsel's ethical or legal responsibilities, “and if not, why not.”
Lozada, 19 I&N Dec. at 639. Though we have previously suggested that an alien
does not need to strictly comply with these three requirements, and that substantial
compliance is sufficient, we have never explicitly so held. Dakane, 399 F.3d at
1274. However, we do not need to reach the substantial-compliance issue today,
as we find that Point du Jour’s compliance has been neither substantial nor exact.
See Gbaya, 342 F.3d at 1222 (“In this case, we need not decide whether the BIA
may enforce strict compliance with Lozada or must also accept substantial
compliance. Gbaya has achieved neither.”).
Point du Jour disputes the BIA’s finding that he did not substantially comply
with the second requirement – that he did not provide evidence or otherwise show
that his former counsel, Antonio Bugge, was given notice of the ineffective-
assistance allegations against him and given an opportunity to respond. Point du
Jour argues that his affidavit illustrates that he regularly attempted to contact
Bugge by phone and inform him of “grievances.” In addition, Point du Jour argues
that his filing of formal disciplinary complaints triggered procedural rules that
would inform Bugge of the claims against him and require him to respond.
We hold that the BIA did not abuse its discretion in determining that Point
du Jour failed to satisfy Lozada. Point du Jour claims that his repeated attempts to
4 Case: 18-15235 Date Filed: 06/04/2020 Page: 5 of 8
contact Bugge about his case “informed [Bugge] of his grievances” and “allowed
for an opportunity to respond,” constituting substantial compliance with Lozada’s
notice requirement. Bugge may have been difficult to reach or evasive, but Point
du Jour’s own affidavit indicates that when he did make contact with Bugge, their
conversations concerned how to proceed in the case and, later, why Point du Jour
was ordered removed from the country. The affidavit does not allege that, during
any of these conversations, Point du Jour conveyed to Bugge that his assistance
was ineffective, or that Point du Jour ever attempted to contact Bugge for the
purpose of telling him so. As such, nothing in the affidavit indicates that Bugge
had any actual notice of allegations that his assistance had been ineffective or any
opportunity to respond to those allegations, as required by Lozada.
Point du Jour’s additional contention that he substantially complied with the
notice requirement of Lozada by filing complaints against Bugge with the Florida
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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 procedural requirements laid out in Lozada. Gbaya v. U.S. Att’y
Gen., 342 F.3d 1219, 1223 (11th Cir. 2003) (“The BIA does not abuse its
discretion by filtering ineffective assistance of counsel claims through the
screening requirements of Lozada . . . .”) The three-part Lozada test requires each
of the following: (1) that the motion be “supported by an affidavit of the allegedly
aggrieved respondent . . . . set[ting] forth in detail the agreement that was entered
into with former counsel” with respect to the actions to be taken and what
representations counsel did or did not make to the respondent in this regard, (2)
that “former counsel must be informed of the allegations and allowed the
opportunity to respond,” and (3) that the motion must “reflect whether a complaint
3 Case: 18-15235 Date Filed: 06/04/2020 Page: 4 of 8
has been filed with appropriate disciplinary authorities" with respect to any
violation of counsel's ethical or legal responsibilities, “and if not, why not.”
Lozada, 19 I&N Dec. at 639. Though we have previously suggested that an alien
does not need to strictly comply with these three requirements, and that substantial
compliance is sufficient, we have never explicitly so held. Dakane, 399 F.3d at
1274. However, we do not need to reach the substantial-compliance issue today,
as we find that Point du Jour’s compliance has been neither substantial nor exact.
See Gbaya, 342 F.3d at 1222 (“In this case, we need not decide whether the BIA
may enforce strict compliance with Lozada or must also accept substantial
compliance. Gbaya has achieved neither.”).
Point du Jour disputes the BIA’s finding that he did not substantially comply
with the second requirement – that he did not provide evidence or otherwise show
that his former counsel, Antonio Bugge, was given notice of the ineffective-
assistance allegations against him and given an opportunity to respond. Point du
Jour argues that his affidavit illustrates that he regularly attempted to contact
Bugge by phone and inform him of “grievances.” In addition, Point du Jour argues
that his filing of formal disciplinary complaints triggered procedural rules that
would inform Bugge of the claims against him and require him to respond.
We hold that the BIA did not abuse its discretion in determining that Point
du Jour failed to satisfy Lozada. Point du Jour claims that his repeated attempts to
4 Case: 18-15235 Date Filed: 06/04/2020 Page: 5 of 8
contact Bugge about his case “informed [Bugge] of his grievances” and “allowed
for an opportunity to respond,” constituting substantial compliance with Lozada’s
notice requirement. Bugge may have been difficult to reach or evasive, but Point
du Jour’s own affidavit indicates that when he did make contact with Bugge, their
conversations concerned how to proceed in the case and, later, why Point du Jour
was ordered removed from the country. The affidavit does not allege that, during
any of these conversations, Point du Jour conveyed to Bugge that his assistance
was ineffective, or that Point du Jour ever attempted to contact Bugge for the
purpose of telling him so. As such, nothing in the affidavit indicates that Bugge
had any actual notice of allegations that his assistance had been ineffective or any
opportunity to respond to those allegations, as required by Lozada.
Point du Jour’s additional contention that he substantially complied with the
notice requirement of Lozada by filing complaints against Bugge with the Florida
Bar and the Executive Office for Immigration Review (“EOIR”) cannot be
sustained because it would eviscerate the separate nature of the Lozada
requirements. The third prong of Lozada implicitly recognizes that, in many cases,
a meritorious ineffective-assistance claim will be formally filed by an alien against
his or her counsel with disciplinary authorities. Reading compliance with the third
Lozada requirement to simultaneously constitute substantial compliance with the
5 Case: 18-15235 Date Filed: 06/04/2020 Page: 6 of 8
notice requirement would eliminate any independent significance of the notice
requirement.
Additionally, in the instant case, Point du Jour’s complaints to disciplinary
authorities about Bugge cannot support substantial compliance with the notice
requirement because the Florida Bar and EOIR procedures of sending notice to the
complained-of attorney are not automatically triggered. Pursuant to the Florida
Bar’s rules and regulations, after a complaint is filed, bar counsel conducts a
screening inquiry to determine whether the alleged conduct would constitute a
violation warranting discipline. R. Reg. Fla. Bar 3-7.3(a). The subject of the
complaint does not receive notice of the complaint until the Florida Bar has
completed its preliminary inquiry. Id. Similarly, the EOIR has a procedural rule
stating that a “Notice of Intent to Discipline” is only sent to the allegedly deficient
counsel if, after a preliminary inquiry, EOIR disciplinary counsel determines that
the complaint has merit. 8 C.F.R. § 1292.19(b). As such, under either avenue, the
filing of a grievance does not necessarily trigger notice being immediately sent to
counsel or necessarily provide an opportunity for a response from counsel. Point
du Jour did not show that either of his two complaints resulted in notice to Bugge
or an opportunity to respond; thus, Point du Jour failed to show that his complaints
constituted substantial compliance with the second requirement of Lozada.
6 Case: 18-15235 Date Filed: 06/04/2020 Page: 7 of 8
Finally, Point du Jour argues that the BIA erred because it failed to
adequately consider the evidence he put forth in support of his claim that he
substantially complied with the second Lozada requirement. The BIA is not
required to specifically discuss each and every piece of evidence presented by the
petitioner. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006). So long
as the agency has “given reasoned consideration to the petition, and made adequate
findings,” it has not erred by failing to consider any individual piece of evidence.
Id. (internal quotations omitted). An agency’s findings are adequate when they
indicate that “the agency has considered the issues raised and announced its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d
860, 874 (11th Cir. 2018) (internal quotations omitted).
The BIA did not fail to give reasoned consideration to Point du Jour’s
evidence. In its decision, it references its review of both Point du Jour’s submitted
affidavit and the two filed disciplinary complaints. The BIA’s opinion indicates
that it considered the evidence, but concluded that it does not show that Bugge was
informed of an ineffective-assistance claim against him. While the BIA may not
have discussed every piece of evidence in detail, the record is clear that the BIA
considered the evidence before it and made a reasoned conclusion; the BIA did not
“merely react[].” Bing Quan Lin, 881 F.3d at 874.
7 Case: 18-15235 Date Filed: 06/04/2020 Page: 8 of 8
In conclusion, the BIA did not abuse its discretion in denying Point du
Jour’s motion to remand because he failed to meet the requirements for presenting
an ineffective assistance of counsel claim under Lozada.
PETITION DENIED.