           Case: 12-15648   Date Filed: 06/07/2013   Page: 1 of 5


                                                      [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15648
                        Non-Argument Calendar
                      ________________________

                        Agency No. A046-243-998



RONEIL CAMPBELL,

                                                                    Petitioner,


                                  versus


US ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                              (June 7, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Roniel Campbell seeks review of the Board of Immigration Appeals’

(BIA’s) decision affirming an Immigration Judge’s (IJ’s) grant of the Department

of Homeland Security’s (DHS’s) motion to reconsider and denial of Campbell’s

motion to reopen. After careful review, we deny Campbell’s petition.

                                          I.

      Campbell, a native and citizen of Jamaica, was admitted to the United States

in January 1998 as a lawful permanent resident. In November 2004, he was

convicted in Florida of three counts of armed robbery and sentenced to 9.75 years’

imprisonment. The following month, DHS served Campbell with a Notice to

Appear, charging him with removability under the Immigration and Nationality

Act (INA). See 8 U.S.C. § 1227(a)(2)(A)(ii) (alien convicted of two crimes of

moral turpitude); id. § 1227(a)(2)(A)(iii) (alien convicted of an aggravated felony);

id. § 1227(a)(2)(C) (alien convicted of a firearm offense).

      Campbell appeared pro se at his March 2005 removal hearing, where the IJ

found him removable as charged. When the IJ asked Campbell if he had any fear

of returning to Jamaica, Campbell said he did because he “ha[d] no family back

home.” But because the IJ found no basis for Campbell to remain in the United

States, the judge ordered Campbell removed. Campbell did not appeal this

decision to the BIA.




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      On November 9, 2011, while he was still serving the remainder of his state

sentence, Campbell filed a counseled motion to reopen removal proceedings and

requested a stay of removal. He attached to the motion an application for relief

under the United Nations Convention against Torture (CAT), in which he averred

that if he returned to Jamaica he likely would be persecuted for being homosexual.

On November 17, while his motion was pending, DHS removed Campbell to

Jamaica. On December 1, the IJ nonetheless granted Campbell’s motion to reopen

and request for a stay of removal.

      DHS moved to reconsider the IJ’s decision, arguing the IJ lacked jurisdiction

to grant the motion to reopen because Campbell was not in the United States when

the IJ acted. The IJ agreed, granted DHS’s motion to reconsider, and denied

Campbell’s motion to reopen. Campbell appealed to the BIA, which dismissed the

appeal. The BIA reasoned that Campbell’s motion to reopen did not automatically

stay his removal and, because DHS had a final removal order at the time of

Campbell’s November 17 removal, the action was lawful. Although the BIA did

have jurisdiction to entertain the motion to reopen despite Campbell’s removal,

Jian Le Lin v. U.S. Att’y Gen., 681 F.3d 1236, 1241 (11th Cir. 2012), the sole form

of relief Campbell sought (CAT relief) was available only to applicants present in

the United States. Accordingly, the BIA concluded, Campbell’s request for relief

was moot. Campbell then filed the instant petition for review.


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                                              II.

       Although we generally lack jurisdiction to review an order against an alien,

such as Campbell, who is removable because he committed a crime under 8 U.S.C.

§ 1227(a)(2), we retain jurisdiction to address constitutional issues and questions

of law. 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D). Because Campbell challenges the

BIA’s determination that he was ineligible as a matter of law for CAT relief, we

may review his petition.1 Id. § 1252(a)(2)(D). The BIA did not adopt the IJ’s

decision, so we review only the BIA’s decision. See Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001).

       We typically review the BIA’s disposition of a motion to reconsider for an

abuse of discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir.

2007). But where, as here, the BIA’s decision was based on a legal determination,

we review de novo. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir.

2008). “The BIA’s interpretation of its own regulations is entitled to deference as

long as it is ‘reasonable’ – as opposed to ‘plainly erroneous’ – and not inconsistent

with the will of Congress or the text of the regulation itself.” Li Shan Chen v. U.S.

Att’y Gen., 672 F.3d 961, 965 n.2 (11th Cir. 2011) (citing Auer v. Robbins, 519

U.S. 452, 461 (1997)).

1
  Campbell also argues DHS could not lawfully have removed him after he filed his motion to
reopen. But he does not dispute that DHS had a valid order of removal. And he cites no
authority indicating that the filing of a motion to reopen with an application for CAT relief
attached operates as an automatic stay of removal. We therefore find this argument meritless.
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                                         III.

      Campbell contends the BIA erred and violated his right to due process by

finding him ineligible for apply for CAT relief. We do not agree. It is true that we

have recently decided that physical removal of a petitioner by DHS does not

preclude the petitioner from pursuing a motion to reopen. Jian Le Lin, 681 F.3d at

1241. Here, the BIA accepted that fact but nonetheless concluded that Campbell

was ineligible as a matter of law for the relief he sought through his motion to

reopen. The BIA cited its regulations, which make CAT relief available to an

“applicant for withholding of removal” who shows that, “if removed to the

proposed country of removal,” he would more likely than not be tortured. 8 C.F.R.

§ 1208.06(c) (emphasis added). And the BIA construed this text to mean

Campbell’s request for relief was moot because he was not an “applicant for

withholding of removal,” nor was he still facing possible removal to a proposed

country. Id. Campbell makes no argument for why this interpretation should not

be entitled to deference. See Li Shan Chen, 672 F.3d at 965 n.2. We therefore

defer to the BIA’s interpretation of its regulations to mean Campbell is ineligible

for CAT relief and, accordingly, conclude that Campbell’s due process rights were

not violated.

      PETITION DENIED.




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