Lyndon Peterson v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1563 ___________ LYNDON MCARTHUR IKE PETERSON, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A041 790 019) Immigration Judge: Margaret R. Reichenberg ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 13, 2020 Before: AMBRO, PORTER, and SCIRICA, Circuit Judges (Opinion filed: November 20, 2020) ___________ OPINION* ___________ PER CURIAM Lyndon McArthur Ike Peterson is a citizen of Grenada. On January 31, 2013, the Board of Immigration Appeals (“BIA” or “Board”) dismissed his appeal from an * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Immigration Judge’s (“IJ”) removal order. Over six years later, Peterson filed with the Board a motion to reopen, alleging that his immigration attorney was ineffective. The Board denied his motion. Peterson petitions for our review of that decision. We will deny the petition for review. Before the IJ, Peterson, represented by counsel, conceded that he was removable under § 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”) [8 U.S.C. § 1227(a)(2)(B)(i)] for having been convicted of a controlled substance offense.1 But he challenged the other charged grounds for removal that were based on his subsequent conviction under 18 U.S.C. § 3146(a)(2), for failing to report to serve the sentence for his drug conviction. Those grounds charged aggravated felonies, and an aggravated felony conviction would make him ineligible for cancellation of removal under INA § 240A(a) [8 U.S.C. § 1229b(a)]. The IJ sustained one of the aggravated felony charges, determining that Peterson’s failure-to-appear conviction constituted obstruction of justice under INA § 101(a)(43)(S) [8 U.S.C. § 1101(a)(43)(S)]. Peterson appealed pro se. The BIA agreed with the IJ that his conviction was an aggravated felony under subsection (S), and further determined that Peterson’s failure-to-appear conviction was also an aggravated felony under subsection (Q).2 Peterson did not petition this Court to review the BIA’s 2013 decision. 1 In 1993, Peterson was convicted of simple possession of a controlled substance under 21 U.S.C. § 844(a). 2 That subsection defines an aggravated felony as failure of a defendant to appear to serve a sentence if the underlying conviction is punishable by a five-or-more-year sentence. INA § 101(a)(43)(Q) [8 U.S.C. § 1101(a)(43)(Q)]. 2 In his motion to reopen, Peterson argued to the BIA that his attorney failed to appear at several of his early immigration hearings, that she “abandoned” his appeal, A.R. 21, and that she “failed to raise multiple viable, fairly basic arguments regarding whether [he] was removable,” A.R. 11. Specifically, he stated that his attorney failed to argue that his failure-to-appear conviction required only that he act “knowingly,” and that this did not match the Board’s definition of “obstruction of justice” under subsection (S), which required “specific intent.” A.R. 12-13. Peterson also argued in his motion to reopen that the Board improperly determined that his conviction constituted an aggravated ...

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