                                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-4207
                                   ________________

                           ANTHONY OLIVER CAMPBELL,
                                               Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                               Respondent
                           ________________

                          On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No. A205-526-016)
                           Immigration Judge: Andrew Arthur
                                  ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 10, 2015

               Before: FUENTES, NYGAARD and ROTH, Circuit Judges

                            (Opinion filed: October 20, 2015)

                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Anthony Oliver Campbell appeals the Board of Immigration Appeals’ denial of

his motion to reopen proceedings due to the alleged ineffectiveness of his former counsel.

For the reasons stated below, we will deny the petition for review..

I.       Background

         Campbell is a citizen of Jamaica. In 2001, he came to the United States on a non-

immigrant F-1 student visa. He remained a student through 2008, finishing his Master’s

Degree in Business Administration. On September 14, 2012 Campbell received a Notice

to Appear, designating him eligible for removal for overstaying his student visa. On

March 8, 2013, DHS commenced removal proceedings against Campbell.

         Campbell retained Kimberly Tomczak and her supervisor, Wayne Sachs, as

counsel. At the time, Campbell was engaged to Georgette Higgin, who was still married

to her former husband, though in the process of divorce. At an April 10, 2013 hearing,

counsel conceded the facts in the NTA and Campbell’s removability, but moved for a

continuance under Matter of Hashmi,1 to allow Campbell and Higgin to marry and apply

for an adjustment of status. Under Hashmi, an immigration judge should presumptively

continue a removal hearing if a prima facie approvable adjustment petition will be made

in the course of removal proceeding.2 The IJ denied the motion because Campbell was

not yet married and could not show a probability of being married soon, as his fiancée

was married to someone else. Moreover, the IJ noted that Campbell had a criminal




1
    24 I. & N. Dec. 785 (BIA 2009).
2
    Id. at 790.



                                           2
record that included five convictions for driving under the influence, making it unlikely

that his application would “merit[s] a favorable exercise of discretion.”3

         On July 10, 2013, Higgin filed a petition for an alien relative on behalf of her new

husband, Campbell. On August 7, 2013, counsel appealed Campbell’s case to the BIA

and moved to remand based on newly acquired evidence: the marriage. While the BIA

noted numerous factors in Campbell’s favor, such as continuous presence, completion of

several degrees, steady employment, and tax compliance, it felt that the criminal

history—specifically the five DUIs—was a serious adverse factor that “strongly

undermine[d] the likelihood that he would be granted adjustment of status as a matter of

discretion.”4 Accordingly, the BIA upheld the denial of a continuance because the

ultimate result would not change.

         On February 19, 2014, USCIS granted Higgin’s petition for an alien relative,

entitling her husband to an immigrant visa. On March 31, 2014, counsel filed a motion

to reopen under 8 C.F.R. § 1003.2(a), stating that the grant of the visa petition on

February 19, 2014 constituted new evidence. On April 8, 2014, the BIA, treating the

untimely motion to reopen as a request to reopen sua sponte, denied the motion based on

the grounds that becoming potentially eligible for adjustment of status after a final order

was not uncommon, and did not establish exceptional circumstances to warrant

reopening.




3
    See id.
4
    J.A. 39.



                                            3
       On April 24, 2014, Campbell retained new counsel and petitioned this Court for

review, arguing that his prior counsel was ineffective. Counsel had never advised

Campbell that he had prima facie eligibility to apply for cancellation of removal because

he had stayed in the country ten years,5 and Campbell argued that was prejudicial error.

Notably, Campbell did not claim that the application for cancellation of removal would

have been granted, but that the consideration of the application itself would have allowed

enough time for Higgin to finalize her divorce, marry Campbell, and file a visa petition

for him without need for the Hashmi motion. On July 23, 2014, we dismissed

Campbell’s motion for stay of removal because we lack jurisdiction over a decision by

the BIA not to reopen a case sua sponte.6

       On July 24, 2014, Campbell moved to reopen his case in the BIA a second time,

on the same ineffective assistance grounds. On September 22, 2014, the BIA declined to

reopen the case, reasoning in part that Campbell’s motion was untimely and number-

barred,7 and that Campbell’s ineffective assistance argument failed. The ineffective

assistance claim assumed that after the delay created by the application for cancellation,

the IJ would have held for him on the merits. According to the BIA, however, the IJ had

already ruled on the merits, and the BIA had previously upheld that decision on the

merits. Consequently, Campbell “ha[d] not shown that, if he had applied for cancellation

of removal and obtained continuance, there was ‘reasonable likelihood that the result


5
  See 8 U.S.C. § 1229b(b).
6
  Campbell v. Attorney Gen., No. 14-2001 (3d. Cir. July 23, 2014) (citing Chehazeh v.
Attorney Gen., 666 F.3d 118, 129 (3d Cir. 2012)).
7
  See 8 C.F.R. § 1003.2.



                                        4
would have been different.’”8 Campbell was subsequently removed to Jamaica, and he

now appeals the BIA’s decision.

II.    Discussion

       We review ineffective assistance of counsel claims in immigration proceedings

under a de novo standard.9 Our Court uses a two-part test to assess error and prejudice,

asking “(1) whether competent counsel would have acted otherwise, and, if yes, (2)

whether the alien was prejudiced by counsel’s poor performance.”10 “[A] showing of

prejudice requires a reasonable likelihood that the result would have been different.”11 A

motion to reopen, however, is reviewed for abuse of discretion,12 and a decision to deny

the motion will be upheld unless it is “arbitrary, irrational, or contrary to law.”13

       Campbell makes two arguments regarding the alleged ineffective assistance of his

prior counsel. First, he argues that the BIA misapplied the prejudice standard, relying on

the BIA’s remark that “the Immigration Judge addressed the merits of his application for

adjustment of status, and found that he did not show that this application would be

granted in the exercise of discretion.”14 Campbell argues that this remark demonstrates

that the BIA required him to prove that a different outcome was certain, rather than

merely likely. Campbell takes this quotation entirely out of context. The IJ denied

Campbell’s Hashmi motion for two independent reasons: 1) the future marriage was

8
  J.A. 2 (quoting Fadiga v. Attorney Gen., 488 F.3d 142, 158 (3d Cir. 2007)).
9
  Fadiga, 488 F.3d at 153-54.
10
   Id. at 157 (internal quotations omitted).
11
   Id. at 158 (internal quotations omitted).
12
   Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003).
13
   Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994).
14
   J.A. 2.



                                         5
speculative and 2) Campbell’s criminal record would prevent a favorable future exercise

of discretion. Campbell’s ineffective assistance argument addresses only the first point:

with better legal assistance he could have delayed, and with adequate delay, the marriage

would no longer have been speculative. But this point does not address his criminal

record. An adjustment of status is still discretionary,15 and the BIA’s remark simply

indicated that nothing about the delay would have made Campbell’s criminal record less

problematic to the IJ. The BIA’s first decision indicated as much when it declined to

remand because the result would not change.16 Thus, we find that no prejudice stemmed

from this alleged error.17

       Second, Campbell argues that in his prior motion to reopen, counsel argued for the

wrong standard. Specifically, rather than applying Hashmi, counsel should have argued

for—and the BIA should have applied—the standard from Matter of L-O-G-.18 But

Campbell’s prior motion was untimely and number-barred, and L-O-G- did not address

those flaws.19 Moreover, the standard in L-O-G- also requires “a reasonable likelihood of




15
   See 8 U.S.C. § 1255.
16
   J.A 38 n.2.
17
   Campbell also argues that his counsel’s error is compounded because if not for the
error he would not have faced forced removal, and would not have been statutorily
ineligible to return for ten years. See 8 U.S.C. § 1182 (a)(9)(A). But this argument
assumes its conclusion, that but for the error, he would have been able to adjust his status.
Moreover, as he was removed after his appeals, Campbell’s ineligibility did not factor
into any of the decisions below, making it irrelevant for prejudice regarding those
decisions.
18
   21 I&N Dec. 413 (BIA 1996).
19
   J.A. 3



                                          6
success on the merits”20 to justify reopening a case, and as discussed above, Campbell

fails under that standard.

III.     Conclusion

         Campbell has not demonstrated that the there is a reasonable likelihood that he

would have succeeded. We will therefore deny the petition for review.




20
     21 I&N Dec. at 420.


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