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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12620
                        Non-Argument Calendar
                      ________________________

                        Agency No. A091-183-341


TREVOR ANTONIO WHITE,

                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                              (May 6, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Trevor Antonio White, a native and citizen of Jamaica, petitions this Court

for review of a decision of the Board of Immigration Appeals (BIA) denying his

motion to reconsider or reopen his removal proceeding. On appeal, White argues

that the BIA abused its discretion when it denied his motion to reconsider or

reopen on the grounds that he was not prejudiced by his counsel’s ineffective

assistance in pursuing all available claims for relief. After careful review, we grant

White’s petition.

                                                I.

       In April 2008, the Department of Homeland Security (DHS) charged White

as removable pursuant to Immigration and Nationality Act (INA) § 237(a)(2)(B)(i),

8 U.S.C. § 1227(a)(2)(B)(i), because he was convicted in New York state court in

1990 of a qualifying controlled substance offense. White conceded his

removability but applied for relief pursuant to former INA § 212(c), which the

Immigration Judge (IJ) granted. 1 DHS appealed the IJ’s decision to the BIA.

       The BIA overturned the IJ’s decision to grant White § 212(c) relief. The

BIA noted that White had originally been granted automatic lawful permanent

resident status as a special agricultural worker (SAW relief) pursuant to INA

§ 210(a)(2)(B), 8 U.S.C. § 1160(a)(2)(B). This permanent resident status is

1
  Congress has eliminated § 212(c) relief, but it remains available to immigrants, like White,
“whose convictions were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of their plea under the law
then in effect.” INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001).
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available only to aliens who performed seasonal agricultural services for at least 90

days during the twelve month period ending on May 1, 1986. See INA

§ 210(a)(1)(B), 8 U.S.C. § 1160(a)(1)(B). Because White admitted facts during the

hearing before the IJ on INA § 212(c) relief establishing that he was initially

ineligible for SAW relief, the BIA found that his permanent resident status was not

“lawful,” a prerequisite for § 212(c) relief. The BIA did not order White’s

immediate removal, instead remanding his case back to the IJ.

      On remand, the IJ ordered White to file “any and all applications for relief”

by May 16, 2011, which is known as a “call-up date.” White’s counsel filed a

motion on May 17 to waive the already-passed call-up date because White had

retained a criminal attorney hoping to have his conviction set aside. The IJ denied

White’s motion because it was untimely and because he had not identified any

forms of relief for which he was eligible. The IJ determined that White had

“abandoned any and all forms of relief” and ordered him removed to Jamaica.

White appealed the IJ’s decision to the BIA, but the BIA affirmed.

      White, through new counsel, moved the BIA to reconsider its decision and

reopen his removal proceedings. White argued that his previous counsel had

provided ineffective assistance, focusing primarily on his counsel’s failure to meet

the call-up filing deadline in the motion. In addition, White noted that, although

his new “counsel ha[d] not had an opportunity to review [White’s] record of

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proceedings” and so was “ill equipped to make all necessary arguments,” it

“appear[ed] that there might be some issues regarding charges of removability and

other legal issues that don’t seem to have been addressed during the proceedings.”

The only such issue White included in his motion argued that the BIA had violated

INA § 210(b)(6)(A), 8 U.S.C. § 1160(b)(6)(A), which prohibits reliance on any

information provided in a SAW relief application for any purpose other than to

make a determination on the application.

      The BIA denied White’s motion. Regarding the motion to reconsider, the

BIA noted that it found no legal or factual defect warranting reconsideration.

Regarding the motion to reopen, the BIA noted that White failed to establish that

the prior counsel’s failure to meet the filing deadline prejudiced him because he

did not accompany his motion with any application for relief or otherwise argue

that he was entitled to relief.

      White now appeals the BIA’s order denying his motion. White argues in

this appeal that the BIA erred in denying the motion because his counsel provided

ineffective assistance by missing the call-up date and therefore failing to preserve

several legal arguments supporting White’s claims for relief from removal. Only

one of these claims is relevant to our resolution of this case: whether the BIA




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violated the limitations on the use of information provided in applications for SAW

relief under INA § 210(b)(6)(A), 8 U.S.C. § 1160(b)(6)(A).2

                                               II.

       This Court has recognized that an immigrant has a right to effective

assistance of counsel in removal proceedings. Mejia Rodriguez v. Reno, 178 F.3d

1139, 1146 (11th Cir. 1999). An alien may challenge a violation of this right by

filing a motion with the BIA to reopen his removal order based on counsel’s

ineffective assistance. See Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272–74

(11th Cir. 2004) (per curiam). We review the denial of a motion to reopen based

on ineffective assistance of counsel for abuse of discretion. Abdi v. U.S. Attorney

Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (per curiam), overruled on other

grounds by Avila-Santoyo v. U.S. Attorney Gen., 713 F.3d 1357 (11th Cir. 2013)

(per curiam). Under this standard, we ask whether the agency exercised its

discretion in a way that was arbitrary or capricious. Id.

       To establish ineffective assistance of counsel, a petitioner must demonstrate

(1) at least substantial compliance with the procedural requirements of Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), and (2) prejudice. Dakane, 399 F.3d at

2
  The government argues that we lack jurisdiction to consider many of White’s ineffective
assistance of counsel claims because he did not raise the alleged performance deficiencies before
the BIA. Whether the INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), exhaustion requirement upon
which the government relies applies to claims of ineffective assistance of counsel is an open
question in this Circuit. See Rama v. U.S. Attorney Gen., 147 F. App’x 905, 914–15 (11th Cir.
2005) (per curiam). We need not address it here, however, because we base our decision on a
performance deficiency that was presented to the BIA.
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1274. “Prejudice exists when the performance of counsel is so inadequate that

there is a reasonable probability that but for the attorney’s error, the outcome of the

proceedings would have been different.” Id. When counsel fails to file a brief and

therefore effectively deprives the alien of the benefit of review, there is a rebuttable

presumption of prejudice. Id. at 1275. This is the very situation in which White

finds himself—due to his counsel’s failure to file a brief in support of his claim of

relief by the IJ’s filing deadline, his efforts to avoid removal were cut short. As a

result, he is entitled to a rebuttable presumption of prejudice.

      In denying White’s motion to reopen, the BIA failed to recognize and

consider the presumption of prejudice to which White is entitled under our

precedent. Instead, the BIA merely asserted that White’s motion was “not

accompanied by any applications for relief” and did not include any arguments in

support of relief from removal, and that as a result he could not prove prejudice.

But White’s motion was accompanied, at least by reference, by an application for

relief—the § 212(c) application already in the record of his removal proceeding.

White maintained in his motion that he was legally eligible for § 212(c) relief, and

that the BIA should not have reversed the IJ’s initial grant of § 212(c) relief based

on “case law which would have supported [his] argument on the merits of his

application for relief under former section 212(c)” that was “never addressed at the

immigration court level nor the Board level.” The BIA’s decision therefore not

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only fails to acknowledge the applicable presumption of prejudice, but also bases

its determination that White was not prejudiced on an erroneous characterization of

White’s motion.

       White’s argument that he was, in fact, eligible for § 212(c) relief is

persuasive. Although the BIA previously found him ineligible for § 212(c) relief,

White argues that the BIA’s determination was unlawful under INA

§ 210(b)(6)(A), 8 U.S.C. § 1160(b)(6)(A). That section precludes the BIA from

using any information furnished by SAW relief applicants “for any purpose other

than to make a determination on the application.” 3 Given the plain language of

this statute, there is a strong argument that the BIA’s reliance on the false or

fraudulent information the government maintains must have been provided in

White’s SAW relief application is prohibited under the statute. This meets White’s

obligations to establish a reasonable probability that, had White’s counsel filed a

brief challenging the legal error, the outcome of the proceeding would have been

different.



3
  This basis for relief is distinguishable from the argument the BIA had already rejected, and so it
is a proper basis for a motion to reconsider or reopen. In the initial DHS appeal from the IJ’s
order granting § 212(c) relief, White objected to the introduction of confidential medical records
in violation of the SAW relief confidentiality provisions. By contrast, his motion to reopen
challenges not the propriety of the introduction of the medical records, but instead the propriety
of the BIA’s reliance on any information supplied in support of his application for SAW relief.
The claim therefore does more than merely republish the reasons that failed to convince the
tribunal in the first place. See Calle v. U.S. Attorney Gen., 504 F.3d 1324, 1329 (11th Cir.
2007).
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      Because the BIA ignored White’s strong legal argument that he was eligible

for § 212(c) relief and therefore was prejudiced by his counsel’s failure to meet the

call-up date, we find that the BIA abused its discretion when it denied White’s

motion. White’s petition is GRANTED, and we vacate the BIA’s order and

remand for further proceedings consistent with this opinion.

      PETITION GRANTED.




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