Carranza v. Sessions
690 F. App'x 33
| 2d Cir. | 2017Background
- Petitioner Cornelio Carranza, a citizen of El Salvador, had a final removal order (2010) and sought review of the BIA’s denial of his motion to reopen (filed 2014).
- Carranza’s motion to reopen was untimely (filed well after the 90-day deadline for motions to reopen a removal order).
- He claimed equitable tolling based on ineffective assistance of prior counsel who allegedly failed to reregister him for Temporary Protected Status (TPS).
- Relevant events: this Court denied Carranza’s petition for review in July 2011; Carranza reapplied for TPS in December 2011; he consulted new counsel in February 2013 after USCIS signaled intent to deny reregistration; he was detained in September 2014 and filed the motion to reopen later that month.
- The BIA denied reopening, finding no due diligence in discovering or acting on the ineffective-assistance claim; the Second Circuit denied Carranza’s petition for review.
Issues
| Issue | Carranza’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying motion to reopen as untimely | Equitable tolling should apply because prior counsel failed to reregister him for TPS | Motion was untimely; Carranza was not diligent in discovering or pursuing an ineffective-assistance claim | Denied — no abuse of discretion; equitable tolling not warranted due to lack of due diligence |
| When Carranza should have discovered ineffective assistance | Discovery occurred only in Sept 2014 (when detained) | He should have discovered earlier (by July 2011 or by Feb 2013 consultation) | Held that he discovered or should have discovered the claim earlier; BIA’s inference was reasonable |
| Whether pending TPS application with USCIS shows diligence in pursuing reopening | Pending TPS reregistration (Dec 2011–2014) shows he was pursuing relief diligently | USCIS application does not show diligence in pursuing reopening in immigration court | Held that USCIS proceedings did not excuse more than one-year unexplained delay in pursuing reopening |
| Whether alternative bases for denial (prima facie eligibility, changed country conditions) were erroneous | Argued primarily on ineffective-assistance ground; did not challenge alternative bases | BIA also denied on these alternative grounds | Court did not reach these alternative grounds since petitioner did not challenge them |
Key Cases Cited
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (standard of review for denial of reopening)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (due diligence requirement for equitable tolling based on ineffective assistance)
- Cekic v. INS, 435 F.3d 167 (2d Cir. 2006) (ineffective assistance principles in immigration context)
- Jian Hua Wang v. BIA, 508 F.3d 710 (2d Cir. 2007) (delay can defeat claim of diligence for reopening)
- Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (consideration of unchallenged alternative BIA rulings)