Juan Gilberto Contreras-Martinez v. U.S. Attorney General
664 F. App'x 882
| 11th Cir. | 2016Background
- Contreras, a noncitizen, sought review of the BIA’s denial of his motion to reopen based on ineffective assistance of prior immigration counsel.
- The BIA’s final decision denying cancellation of removal was issued August 2, 2013; Contreras filed his motion to reopen on June 23, 2015.
- Motion to reopen deadline: 90 days after the final administrative removal order; Equitable tolling available if due diligence and extraordinary circumstances shown.
- Contreras alleged counsel wrongly filed and then withdrew an asylum application and conceded removability, despite counsel knowing Contreras lacked ten years’ continuous physical presence.
- Contreras waited over a year after his prior counsel’s 2014 BIA disbarment to file a Florida Bar complaint (May 19, 2015) and did not present evidence of diligence or explain the delay.
- Even if ineffective assistance occurred, Contreras could not show prejudice: he was not prima facie eligible for cancellation or adjustment of status due to statutory ineligibility (failure to meet continuous physical presence and timing requirements).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / Equitable tolling for motion to reopen | Contreras: prior counsel’s ineffective assistance excuses late filing; lacked expert advice earlier | Government: 90-day deadline not met; Contreras showed no diligence or extraordinary circumstance | Denied; motion untimely and not equitably tolled |
| Due diligence in pursuing ineffective-assistance claim | Contreras: did not have immigration counsel; filed bar complaint and later motion | Government: long unexplained delay after BIA decision and counsel’s disbarment; no proof of timely efforts | Denied; Contreras failed to show diligence |
| Prejudice from counsel’s alleged ineffective assistance | Contreras: counsel’s actions foreclosed relief (cancellation/adjustment) | Government: record shows Contreras was statutorily ineligible regardless of counsel’s actions | Denied; no reasonable probability of a different outcome |
| Availability/review of alternative remedies (e.g., prosecutorial discretion) | Contreras (raised on appeal): counsel should have sought administrative closure/prosecutorial discretion | Government: issue not exhausted before BIA; no showing discretion would have been granted | Not reviewed for lack of jurisdiction; no showing of probable favorable discretion |
Key Cases Cited
- Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir.) (equitable tolling standard for motions to reopen)
- Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir.) (ineffective-assistance facts can support tolling and merits)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir.) (prejudice requirement for ineffective-assistance claims in removal proceedings)
- Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir.) (standard of review for BIA denial of motion to reopen: abuse of discretion)
- Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir.) (jurisdictional limits where BIA exhaustion not met)