NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-1446 ___________

REGINALDO COLINO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A216-407-722 ) Immigration Judge: Irma Lopez Defillo ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) July 3, 2019 Before: MCKEE, COWEN, and RENDELL, Circuit Judges

(Opinion filed: July 9, 2019) ___________

OPINION * ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Reginaldo Colino, a native and citizen of Brazil, petitions for review of the Board

of Immigration Appeals’ decision denying his motion to reopen,

(c)(1).

For the reasons that follow, we will deny the petition for review.

Colino entered the United States on December 1, 1998 with permission to stay

until May 31, 1999. On January 5, 2018, the Department of Homeland Security charged

him with removability under

(a)(1)(B) for overstaying his visitor’s visa.

Colino, through counsel, admitted his removability in Immigration Court. The

Immigration Judge granted Colino and his counsel two continuances to submit any

applications for relief from removal.

At Colino’s removal hearing on May 23, 2018, the IJ asked Colino’s counsel what

relief from removal Colino would be seeking. Colino’s counsel stated that Colino did not

have any applications for relief from removal, and that any form of relief would be based

on his cooperation with law enforcement in a pending criminal case. Colino’s counsel

asked the IJ for an additional continuance. The IJ declined to grant any further

continuances and noted that, if the Government needed Colino to remain in the United

States to assist in a criminal prosecution, the Department of Homeland Security could

stay his removal or facilitate an application on his behalf for an S-visa. 1 In any event, the

1 An S-visa is a temporary visa that allows a cooperating witness to remain in the United States for three years. Doe v. Holder,

, 253 n.2 (2d Cir. 2014) (citing

(a)(15)(S)). A law enforcement agency applies for the S-visa on behalf of a cooperating witness.

(citing

(t)). 2 IJ concluded, Colino’s stated cooperation with law enforcement did not render him

eligible for relief from removal. The IJ stated that Colino did not appear to be eligible for

cancellation of removal because he had no qualifying relatives or eligible for withholding

of removal because he did not fear harm upon his return to Brazil, to which Colino’s

counsel responded, “That’s correct, your honor.” The IJ told Colino that she did not

“foresee any other potential relief” for which he would “qualify for before the court.”

The IJ asked Colino’s counsel if he could “enlighten [her] that there’s something that [she

was] not seeing.” Colino’s counsel responded, “I can’t, your honor.” After counsel

indicated that Colino would not be seeking voluntary departure, the IJ asked Colino’s

counsel, “So [he] wants an order of removal?” As Colino’s counsel responded that

“[t]hat appears to be” the case, Colino interjected, “That’s fine, your honor.”

At the conclusion of the removal hearing, the IJ issued a form decision ordering

Colino removed to Brazil. On the second page of the form, the IJ checked a box showing

that both parties waived appeal. Colino, acting pro se, appealed to the Board of

Immigration Appeals, contending that the IJ did not fully consider all of his options for

relief. On July 30, 2018, the Board remanded Colino’s case because there was no oral or

written decision from the removal hearing. On remand, the IJ issued another form

decision, writing by hand that she issued a “summary written decision” because Colino

“did not seek relief before the court.” The IJ also wrote that the “appeal was waived.”

Colino again appealed to the Board.

3 On September 20, 2018, the Board dismissed Colino’s appeal. The Board noted

that Colino had waived an appeal and had not argued that his decision to waive his appeal

was not a knowing and intelligent one. The Board concluded that the IJ’s decision

therefore became administratively final upon Colino’s waiver of that right, citing, in

pertinent part,

(a)(1), 1003.39.

On December 17, 2018, Colino filed a motion to reopen removal proceedings with

the Board, arguing that, on May 23, 2018, the IJ conducted both a removal hearing and a

bond determination. Colino claimed that he asked his attorney to reserve his right to

appeal the removal order and waive his appeal of the bond determination. Colino argued

that the failure to reserve his right to appeal was the result of confusion between his

attorney and the IJ, and/or, in the alternative, confusion between him and his attorney,

and thus his waiver was not knowing and intelligent. He argued a violation of his due

process rights in connection with the loss of his appeal to the Board on the ground that it

was “irrational” to waive an appeal of a removal order but reserve an appeal of the denial

of a bond determination.

On February 18, 2019, the Board denied Colino’s motion to reopen. In rejecting

his arguments as meritless, the Board reasoned that Colino had appeared in Immigration

Court with counsel, had stated that he was not eligible for any form of relief within the

IJ’s authority to grant, and, after waiving any right he might have had to voluntary

departure, had consented to the issuance of an order or removal. The Board further held

that, to the extent that Colino blamed his attorney for waiving his appeal rights, he had 4 not complied with the requirements set forth in Matter of Lozada,

(BIA 1988), or explained why he could not do so.

Colino timely petitions for review of the Board’s order denying his motion to

reopen. We have jurisdiction pursuant to

(a)(1), (b)(1). 2 We review the

Board’s denial of a motion to reopen for an abuse of discretion. See Contreras v. Att’y

Gen. of U.S.,

(3d Cir. 2012). Accordingly, we may reverse the

Board’s decision “only if the denial is arbitrary, irrational, or contrary to law.”

(citing

Shardar v. Att’y Gen. of U.S.,

(3d Cir. 2007)). In his Informal

Brief, Colino argues that the Board erred in not addressing his ineffective assistance of

counsel claim on the merits, and that counsel’s failure to preserve his right to appeal to

the Board violated his constitutional right to due process. Petitioner’s Informal Brief, at

2, 4, 6. 3

To make a due process claim under the Fifth Amendment, the alien must show

that he was prevented from reasonably presenting his case, and that substantial prejudice

resulted. See Fadiga v. Att’y Gen. of U.S.,

(3d Cir. 2007). 4 A Fifth

2 We previously denied Colino’s motion for a stay of removal. 3 Colino does not argue, as he did before the Board, that his waiver of an appeal was not a knowing and intelligent one. Accordingly, this issue is waived. See Chen v. Ashcroft,

(3d Cir. 2004). 4 The Sixth Amendment right to the effective assistance of counsel does not apply, because immigration proceedings are civil rather than criminal in nature. Id. at 155, 157 & n.23. 5 Amendment due process claim based on an allegation of ineffective assistance of counsel

during removal proceedings must meet certain procedural requirements. See Lu v.

Ashcroft,

(3d Cir. 2001). The petitioner must (1) support the claim

with an affidavit “that sets forth in detail the agreement that was entered into with former

counsel with respect to the actions to be taken on appeal and what counsel did or did not

represent to the petitioner in this regard;” (2) inform former counsel of the allegations and

provide counsel with the opportunity to respond, and this response should be submitted

with the motion alleging ineffective assistance, and (3) state “whether a complaint has

been filed with appropriate disciplinary authorities regarding such representation, and if

not, why not.

(quoting Lozada,

). Strict compliance with the

requirements may be excused where the petitioner provides a reasonable explanation for

his failure to comply, Lu,

.

In Colino’s case, he plainly failed to comply with any of the Lozada procedural

requirements for raising an ineffective assistance of counsel claim. Moreover, the Board

reasonably concluded that his lack of an explanation for this failure was a proper basis for

denying the motion to reopen. In particular, Colino provided no evidence showing that

he contacted his former counsel, advised former counsel of the allegation of

ineffectiveness, or provided former counsel with an opportunity to respond. Colino’s

failure to notify former counsel of the alleged ineffectiveness and provide him an

opportunity to respond is especially significant in view of his contention that it was

“irrational” for counsel to have waived an appeal of the removal order and instead have 6 reserved an appeal of a bond denial. Moreover, although Colino argued in his motion to

reopen that he told former counsel to reserve an appeal, he did not, as required under

Lozada, make this claim in an affidavit. Colino also did not provide evidence showing

that he filed a bar complaint against his former counsel, or provide an explanation for

why he had not done so. Accordingly, the Board did not abuse its discretion in denying

Colino’s motion to reopen, see Contreras,

; Shardar,

.

For the foregoing reasons we will deny the petition for review.

7