NOT PRECEDENTIAL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)

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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 nonimmigrant 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.
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.
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,5and 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 numberbarred,

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.
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.
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
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.