Djordje Zivku v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-3294 ____________ DJORDJE ZIVKU, a/k/a George Zivku, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________ On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A209-307-987) Immigration Judge: John P. Ellington ____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 24, 2020 Before: PHIPPS, RENDELL, and FISHER, Circuit Judges. (Filed: June 30, 2020 ) ____________ OPINION * ____________ FISHER, Circuit Judge. Djordje Zivku, a Serbian citizen, seeks review of a denial of his motion to reopen * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. removal proceedings. He claims that he was provided ineffective assistance of counsel (IAC) when he elected voluntarily to depart the United States. For the reasons that follow, we will deny the petition. 1 The Fifth Amendment’s Due Process Clause guarantees to noncitizens effective counsel in removal proceedings. 2 Yet, in Matter of Lozada, the Board of Immigration Appeals (BIA) imposed three threshold procedural requirements on all motions to reopen premised on an IAC claim: (1) the motion “should be supported by an affidavit of the allegedly aggrieved [noncitizen] attesting to the relevant facts”; (2) “former counsel must be informed of the allegations and allowed the opportunity to respond,” and any response, or failure or refusal thereof, “should be submitted with the motion”; and (3) “the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”3 Although we do not “apply a strict, formulaic interpretation of Lozada,” 4 our Court has “generally agree[d]” that denial of a motion to reopen on Lozada grounds “is not an abuse of the [BIA]’s wide-ranging discretion.” 5 The “requirements serve as a threshold and screening mechanism to help the [BIA] assess the substantial number of 1 We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA both affirmed the IJ’s decision and added its own analysis, we review each decision. Contreras v. Att’y Gen. of U.S., 665 F.3d 578, 583 (3d Cir. 2012). “We review the denial of a motion to reopen for abuse of discretion and may reverse only if the denial is arbitrary, irrational, or contrary to law.” Id. 2 See Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). 3 19 I. & N. Dec. 637, 639 (B.I.A. 1988). 4 Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (alteration omitted) (quoting Lu, 259 F.3d at 133). 5 Lu, 259 F.3d at 133. 2 [IAC] claims that it receives.”6 Here, Zivku has failed to satisfy both the second and the third prongs, and that is enough to doom his petition. 7 Under the second prong, Zivku was required not only to inform James Scallion, his former counsel, of the allegations against him, but also to allow Scallion the opportunity to respond. The immigration judge (IJ) and the BIA did ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals