Diaz-Tineo v. Sessions
689 F. App'x 34
| 2d Cir. | 2017Background
- Petitioner Nicanor Diaz-Tineo, a native of the Dominican Republic, sought review of the BIA’s August 5, 2015 denial of his motion to reopen removal proceedings.
- His underlying removal order was based on a controlled-substance conviction; he argues eligibility for former INA §212(c) relief because his 1980 convictions were obtained after trial.
- Diaz-Tineo filed a statutory motion to reopen that was untimely under 8 U.S.C. §1229a(c)(7)(C); he asked the BIA to excuse untimeliness via equitable tolling or nunc pro tunc relief.
- The BIA denied equitable tolling and declined to grant nunc pro tunc relief without providing any reasoning for the latter determination.
- He also sought the BIA’s exercise of its sua sponte (regulatory) authority to reopen, which the BIA declined; the Second Circuit’s jurisdiction over review of such discretionary denials is limited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling excuses untimely statutory motion to reopen | Diaz-Tineo argued extraordinary circumstances prevented timely filing | Government argued no extraordinary circumstances shown to causally prevent timely filing | Denied — BIA did not err: no equitable tolling warranted |
| Whether nunc pro tunc relief should excuse filing deadline | Diaz-Tineo argued agency error and subsequent legal developments made him eligible for §212(c) and warranted nunc pro tunc relief | Government defended BIA denial; BIA provided no explanation for denying nunc pro tunc | Granted in part — remanded because BIA failed to justify denial of nunc pro tunc relief |
| Whether BIA should have reopened sua sponte (regulatory motion) | Diaz-Tineo asked BIA to exercise discretionary authority to reopen regardless of time limits | Government maintained BIA properly exercised discretion; such decisions are not reviewable here | Dismissed in part — court lacks jurisdiction to review discretionary sua sponte denial |
| Scope of court’s review given controlled-substance conviction basis for removal | Diaz-Tineo sought review of legal and discretionary errors in BIA decision | Government argued jurisdiction limited to constitutional claims and questions of law under 8 U.S.C. §1252(a)(2) | Court exercised limited review: allowed legal challenge re: nunc pro tunc, dismissed review of discretionary regulatory denial |
Key Cases Cited
- Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (equitable tolling requires causal link between extraordinary circumstances and late filing)
- Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000) (definition and causal requirement for equitable tolling)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (agency discretionary decisions made without rational justification present questions of law)
- Edwards v. INS, 393 F.3d 299 (2d Cir. 2004) (nunc pro tunc relief may be required where agency error prevents an alien from seeking relief)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (very limited review of BIA denial of sua sponte reopening)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (jurisdictional limits on review of regulatory motions to reopen)
- Durant v. U.S. INS, 393 F.3d 113 (2d Cir. 2005) (jurisdiction limited to constitutional claims and questions of law in certain motions to reopen)