Felix Diaz v. Jefferson Sessions, III
894 F.3d 222
5th Cir.2018Background
- Diaz, a Nicaraguan LPR since 1999, was charged inadmissible in 2015 after a prior 2007 felony cocaine-possession conviction; IJ found him inadmissible and designated Nicaragua for removal.
- Diaz applied for cancellation of removal in 2015 but, after admitting additional misconduct (including years of intentional tax fraud) at the merits hearing, withdrew the cancellation application and requested voluntary departure on counsel’s advice; IJ granted voluntary departure and Diaz waived appeal.
- In 2016 Diaz moved to reopen, claiming ineffective assistance of counsel (IAC) at the cancellation proceeding and seeking equitable tolling of the 90-day deadline for reopening; DHS argued the motion was time-barred.
- The IJ found the motion untimely, concluded Diaz met Lozada’s procedural steps but failed to show prejudice from counsel’s performance given his admissions of tax fraud, and denied equitable tolling; the BIA dismissed for the same reasons.
- Diaz petitioned for review in the Fifth Circuit, asserting his IAC claim raised a constitutional due-process issue and that equitable tolling should apply; the government argued the court lacked jurisdiction because of Diaz’s controlled-substance conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review motion to reopen where petitioner has a controlled-substance conviction | Diaz: IAC is a constitutional claim/questions of law so §1252(a)(2)(D) preserves review | Gov: §1252(a)(2)(C) strips jurisdiction and Diaz’s claims are factual | Court: Jurisdiction exists to the extent petition raises constitutional IAC or legal questions; factual matters necessary to resolve those claims may be reviewed |
| Whether IAC found such that equitable tolling of the 90-day reopening deadline applies | Diaz: Counsel’s ineffectiveness prevented him from pursuing cancellation and thus justifies tolling | Gov: No prejudice shown; admissions (tax fraud) made success on cancellation unlikely | Court: Diaz failed to show prejudice from counsel’s conduct; admissions undermined likelihood of cancellation; no equitable tolling |
| Whether the BIA applied wrong legal standard for equitable tolling (raised in reply) | Diaz: BIA applied incorrect legal standard (argued only in reply) | Gov: Waiver; issue raised too late and unsupported | Court: Waived—issue raised first in reply brief and not developed; not considered |
| Request for BIA to reopen sua sponte | Diaz: BIA should have exercised sua sponte reopening authority | Gov: Discretionary; no standard for review | Court: No jurisdiction to review denial of sua sponte reopening; claim dismissed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong IAC test: deficiency and prejudice)
- Kucana v. Holder, 558 U.S. 233 (2010) (jurisdictional rules for review of BIA decisions)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (equitable tolling requires diligence and extraordinary circumstance)
- Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (2016) (defines extraordinary-circumstance standard for equitable tolling)
- Penalva v. Sessions, 884 F.3d 521 (5th Cir. 2018) (diligence is a factual question in equitable tolling analysis)
- Mendias-Mendoza v. Sessions, 877 F.3d 223 (5th Cir. 2017) (no review of denial of sua sponte reopening)
- Nehme v. INS, 252 F.3d 415 (5th Cir. 2001) (jurisdictional principles for petitions for review)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (standards of review for BIA decisions)