Roneil Campbell v. US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15648
Non-Argument Calendar
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Agency No. A046-243-998
RONEIL CAMPBELL,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(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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