19-60017
5th Cir.Aug 25, 2020Background
- Jorge Alfredo Flores-Moreno, a Mexican LPR, was convicted in 2010 for possession of between 50 and 2,000 pounds of marijuana; DHS charged him removable under the controlled-substance ground.
- An IJ found him removable but granted cancellation of removal; the BIA reversed and entered a removal order on February 8, 2011; Flores-Moreno was removed February 11, 2011.
- He illegally reentered on February 15, 2011, visited his original attorney’s office, and was told by a legal assistant that an appeal was impossible and a “recommendation” (taking three years) would be filed.
- After waiting, he consulted a second attorney who said nothing could be done; a third attorney on January 31, 2018 advised filing a motion to reopen based on post-conviction ineffective assistance of counsel.
- Flores-Moreno filed a motion to reopen on May 1, 2018 (over seven years late). The BIA denied it as untimely and not entitled to equitable tolling for lack of reasonable diligence and also found no demonstrated prejudice.
- The Fifth Circuit denied review: it held it had jurisdiction to review the due-diligence legal question (post-Guerrero-Lasprilla) and concluded the BIA did not abuse its discretion in refusing equitable tolling or applying the gross-miscarriage-of-justice argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA’s equitable-tolling/due-diligence determination | Flores-Moreno: due-diligence is a legal question and reviewable | Government: due-diligence is factual and barred by §1252(a)(2)(D) | Court: Guerrero-Lasprilla makes application-of-law-to-facts reviewable; jurisdiction exists |
| Whether BIA misapplied equitable-tolling standard (reasonable diligence) | Flores-Moreno: relied on counsel and delays; entitled to tolling | Government/BIA: record shows multi-year gap (2014–2017) with no meaningful efforts—no reasonable diligence | Court: BIA did not abuse discretion; petitioner failed to show reasonable diligence |
| Whether ineffective-assistance claim shows prejudice to excuse untimeliness | Flores-Moreno: original counsel’s inaction prevented timely reopening | Government: petitioner failed to show prejudice or entitlement; counseling on discretionary relief not constitutionally protected | Court: Because diligence failed, abuse-of-discretion review stands; alternatively no prejudice shown and no right to counsel for discretionary cancellation |
| Gross miscarriage of justice exception | Flores-Moreno: exception should excuse untimeliness | Government: exception not applicable to motions to reopen; underlying order not clearly unlawful | Court: BIA properly declined to apply exception; petitioner did not show underlying order clearly unlawful |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (standard of review for BIA denial of motions to reopen; abuse-of-discretion review)
- Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) (articulating deferential review of BIA factual findings)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (equitable tolling applies to motions to reopen; elements of diligence and extraordinary circumstance)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (U.S. 2020) (application of a legal standard to undisputed facts is a question of law and reviewable)
- Penalva v. Sessions, 884 F.3d 521 (5th Cir. 2018) (prior Fifth Circuit treatment of due-diligence as factual)
- Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017) (declining to extend gross-miscarriage-of-justice exception to untimely motions to reopen)
- Gutierrez-Morales v. Homan, 461 F.3d 605 (5th Cir. 2006) (no constitutional right to counsel for pursuing discretionary relief such as cancellation of removal)