Cesar Jean Renaud v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13886
Non-Argument Calendar
____________________
CESAR JEAN RENAUD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-385-888
____________________
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2 Opinion of the Court 21-13886
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Cesar Renaud, proceeding pro se before this Court, seeks re-
view of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reconsider its summary dismissal of his appeal or re-
open his removal proceedings. After careful review, we dismiss in
part and deny in part Renaud’s petition.
I.
Renaud, a native and citizen of Haiti, entered the United
States without documentation in 2016. He was immediately issued
a notice to appear, charging him with being removable as an immi-
grant who, at the time of application for admission, was not in pos-
session of a valid entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Renaud, through counsel, conceded removability and sought asy-
lum, withholding of removal, and protection under the United Na-
tions Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”).
In his application and during a hearing before an immigra-
tion judge (“IJ”), Renaud asserted that, while living in Haiti in 2005,
he worked for a political campaign by providing would-be voters
with money for transportation to polling places. He asserted that
because of that activity he was brutally attacked by members of an
opposition party. Thereafter, he fled to the Dominican Republic
and, eventually, the United States.
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21-13886 Opinion of the Court 3
The IJ denied Renaud’s application for asylum, withholding
of removal, and CAT relief. The IJ found that Renaud was not cred-
ible, citing multiple internal inconsistencies in Renaud’s state-
ments, significant discrepancies between Renaud’s and his spouse’s
hearing testimony, and the lack of corroborating evidence of Re-
naud’s political work or injuries. Given that Renaud was not cred-
ible, the IJ concluded that he had failed to sustain his burden of
proof to show past persecution or a well-founded fear of future per-
secution and thus was ineligible for asylum. The IJ further con-
cluded that Renaud could not meet his higher burden of showing
eligibility for withholding of removal and had not provided any ev-
idence that he would be tortured at the hands or acquiescence of
the Haitian government such that he would be entitled to CAT re-
lief.
New counsel filed a notice of appearance to represent Re-
naud in an appeal before the BIA and filed a notice of appeal of the
IJ’s decision. In the counseled notice of appeal, Renaud stated that
the IJ erred in denying him asylum based on past persecution or a
well-founded fear of future persecution. He asserted that his testi-
mony was credible. Also in the notice of appeal, Renaud indicated
by checking a “Yes” box that he intended to file a written brief or
statement. Below the box the notice stated:
WARNING: . . . If you mark “Yes[,]” . . . you will be
expected to file a written brief or statement after you
receive a briefing schedule from the Board. The
Board may summarily dismiss your appeal if you do
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4 Opinion of the Court 21-13886
not file a brief or statement within the time set in the
briefing schedule.
AR at 34. 1 The BIA issued a briefing schedule, but Renaud did not
file a brief, and the government moved for summary affirmance.
The BIA summarily dismissed Renaud’s appeal, citing Renaud’s
failure to file a brief. Renaud did not file a timely petition for review
of the summary dismissal.
Renaud again retained new counsel, who filed with the BIA
a one-page motion for reconsideration and to reopen removal pro-
ceedings. In the motion, Renaud stated that he paid his previous
counsel for a brief and “was being told the brief was done,” despite
that it was not in fact done. Id. at 5. Renaud stated that he had since
“requested clarification” from his former counsel, who incorrectly
“thought the fee was not paid.” Id. Renaud requested time to sub-
mit a brief to the BIA. In an affidavit attached to the motion, Re-
naud stated that upon receiving notice of the BIA’s dismissal of his
appeal, he “spoke with [counsel’s] office and found out [the brief]
had not been submitted.” Id. at 7. He also stated that his new coun-
sel had spoken with his previous attorney.
The BIA denied Renaud’s motions. The BIA concluded that
although Renaud was raising a claim of ineffective assistance of
counsel based on counsel’s failure to file a brief, he had failed to
1 “AR” refers to the Administrative Record.
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21-13886 Opinion of the Court 5
comply with Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),
which set forth procedural requirements for asserting such a claim.
Renaud, now pro se, has petitioned this Court for review.
II.
We review the BIA’s denial of a motion to reopen removal
proceedings and denial of a motion for reconsideration for an abuse
of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th
Cir. 2009) (motion to reopen); Assa’ad v. U.S. Att’y Gen., 332 F.3d
1321, 1341 (11th Cir. 2003) (motion for reconsideration). “The BIA
abuses its discretion when it misapplies the law in reaching its de-
cision,” or when it fails to follow its own precedents “without
providing a reasoned explanation for doing so.” Ferreira v. U.S.
Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013).
We review our subject matter jurisdiction de novo. Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
We lack jurisdiction to consider a claim raised in a petition for re-
view “unless the petitioner has exhausted his administrative reme-
dies with respect thereto.” Id. A petitioner fails to exhaust his ad-
ministrative remedies with respect to a particular claim when he
does not raise that claim before the BIA. Id.We construe pro se briefs liberally. Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
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6 Opinion of the Court 21-13886
III.
In his petition for review, Renaud argues that the BIA erred
in denying his motions to reconsider and to reopen. 2 His argument
focuses on his failure file a timely brief in support of his appeal from
the denial of his application for asylum, withholding of removal,
and CAT relief. Specifically, he contends that he could not timely
file a brief “because of pandemic uncertainty and requirements.”
Petitioner’s Br. at 4. 3 So, he argues, he should have been permitted
to file a brief belatedly. But Renaud’s motions argued that he
should be permitted to file a belated brief for a different reason—
his counsel’s failure to file a brief, unbeknownst to Renaud. Renaud
never made the argument about the pandemic in his motions be-
fore the BIA. Thus, we lack jurisdiction to consider it and must dis-
miss his petition for review insofar as it is based on this argument.
Amaya-Artunduaga, 463 F.3d at 1250.
2 Renaud also seeks to challenge the BIA’s summary dismissal of his appeal for
failure to file a brief. We lack jurisdiction to consider his challenge because he
failed to timely file a petition for review from the BIA’s summary dismissal
order. See Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1285 (11th Cir. 2007); 8
U.S.C. § 1252(b)(1) (requiring a petition for review to be filed within 30 days).
We therefore dismiss this portion of Renaud’s petition for review.
3 We note that the BIA’s briefing schedule required that Renaud file a brief by
November 25, 2019, before COVID-19 began to disrupt life in the United
States. See generally Ga. Ass’n of Latino Elected Officials, Inc. v. Gwinnett
Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1109 (11th Cir. 2022) (cit-
ing the “public health crisis surrounding the spread of COVID-19 in early
2020”).
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21-13886 Opinion of the Court 7
Renaud’s brief does not challenge the BIA’s denial of his mo-
tion to reconsider and reopen removal proceedings based on its
conclusion that he failed to meet the procedural requirements for
an ineffective-assistance-of-counsel claim. But even if we were to
liberally construe his petition as challenging the BIA’s conclusion,
we would find Renaud’s challenge to be meritless. A motion to re-
open based on alleged ineffective assistance of counsel must satisfy
three procedural requirements. Matter of Lozada, 19 I. & N. Dec.
637, 639 (B.I.A. 1988). 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 ineffective-assistance claim and
given an opportunity to respond. Id. Third, the motion should ei-
ther reflect that a complaint was filed with an appropriate discipli-
nary body or explain why such a complaint was not filed. Id. We
have held that the BIA may require a movant to satisfy this three-
part test. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir.
2005). Even assuming Renaud’s motion and accompanying affida-
vit satisfied the first two of these requirements, Renaud did not in-
dicate that he had filed a complaint against his former counsel or
explain why no such complaint had been filed. Thus, the BIA’s con-
clusion that he had failed to satisfy Matter of Lozada was not an
abuse of discretion. We therefore deny in part Renaud’s petition
for review.
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8 Opinion of the Court 21-13886
IV.
For the above reasons, we dismiss Renaud’s petition for re-
view in part and deny it in part.
PETITION DISMISSED IN PART, DENIED IN PART.