Leonardo Esparza-Diaz v. U.S. Attorney General
666 F. App'x 865
| 11th Cir. | 2016Background
- Esparza‑Diaz, ordered removed, filed a second motion to reopen; BIA denied it as time‑ and number‑barred under 8 C.F.R. § 1003.2(a).
- He argued his three prior attorneys provided ineffective assistance, warranting equitable tolling of the 90‑day/time and one‑motion limits and allowing consideration of cancellation of removal.
- He also asked the BIA to exercise its sua sponte authority to reopen proceedings, which the BIA declined to do.
- The BIA concluded his ineffective‑assistance claim could not show prejudice because cancellation of removal is discretionary; thus no "exceptional circumstances" justified tolling.
- The Eleventh Circuit reviewed for abuse of discretion and (a) denied relief on the ineffective‑assistance/equitable tolling claim and (b) dismissed review of the BIA’s refusal to sua sponte reopen for lack of jurisdiction.
Issues
| Issue | Esparza‑Diaz's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether ineffective assistance by prior counsel warrants equitable tolling of time/number bars on motions to reopen | Counsel’s failures prevented timely presentation of evidence showing his Florida open‑carry conviction is not a disqualifying firearm offense, so equitable tolling is warranted | Counsel’s failures do not establish prejudice because cancellation of removal is discretionary and speculative | Denied — Mejia Rodriguez bars a due‑process prejudice showing where relief is discretionary, so no exceptional circumstances for tolling were shown |
| Whether the BIA abused discretion in refusing to exercise sua sponte authority to reopen | BIA should exercise sua sponte authority to consider the reopened evidence | BIA properly declined; sua sponte reopening is discretionary | Dismissed for lack of jurisdiction — court bound by precedent that it cannot review BIA’s refusal to sua sponte reopen |
Key Cases Cited
- Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224 (11th Cir. 2008) (standard of abuse‑of‑discretion review for BIA denial of motions to reopen)
- Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir. 2009) (motions to reopen disfavored in removal proceedings)
- Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (three independent grounds for denying motions to reopen)
- Avila‑Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (90‑day time limit is claim‑processing and subject to equitable tolling)
- Ruiz‑Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir. 2013) (equitable tolling is a threshold showing before merits of motion to reopen)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) (Fifth Amendment due‑process right to effective assistance where counsel is retained)
- Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999) (no due‑process prejudice where deficient counsel only affected eligibility for discretionary relief)
- Mohammed v. Ashcroft, 261 F.3d 1244 (11th Cir. 2001) (application of Mejia Rodriguez to cancellation of removal)
- Lenis v. U.S. Att’y Gen., 525 F.3d 1291 (11th Cir. 2008) (court lacks jurisdiction to review BIA’s denial of sua sponte reopening)
- Butka v. U.S. Att’y Gen., 827 F.3d 1278 (11th Cir. 2016) (Mata did not change Lenis; appellate courts lack jurisdiction to review BIA’s refusal to sua sponte reopen)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (Supreme Court: denial of untimely statutory motion and denial of sua sponte reopening can be treated separately for jurisdictional purposes)