Maria Penalva v. Jefferson Sessions, III, 884 F.3d 521

Background

Maria Natalia Penalva, an Argentine LPR, had multiple convictions (theft, possession of cocaine, grand theft, access device fraud) and was ordered removed in 2010 after an IJ found her removable; she did not appeal and was removed.
In 2015 she filed a motion to reopen more than five years after the final removal order, asserting equitable tolling based on ineffective assistance of counsel for not challenging her access device fraud as an aggravated felony; she attached a cancellation-of-removal application.
The IJ denied the motion as untimely, rejected equitable tolling, found Penalva ineligible for cancellation due to her prior convictions, and faulted her for failing to satisfy Matter of Lozada procedural requirements for ineffective-assistance claims.
The BIA affirmed, concluding Penalva failed to show due diligence warranting equitable tolling and failed Lozada compliance; it also held she could not demonstrate prejudice because of ineligibility for cancellation.
The Fifth Circuit considered whether it had jurisdiction to review the BIA’s factual finding on diligence given 8 U.S.C. § 1252(a)(2)(C)’s bar on review of removal orders for criminal aliens and whether the equitable-tolling inquiry is a question of fact or law.
The court concluded the diligence/equitable-tolling inquiry is fact-intensive (a question of fact) and, because Penalva is removable under criminal provisions covered by § 1252(a)(2)(C), the court dismissed the petition for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 90-day motion-to-reopen deadline is subject to equitable tolling	Penalva: deadline tolled due to ineffective assistance; she acted diligently	Government: untimely; no extraordinary circumstance or diligence shown	Court: Equitable-tolling application is fact-intensive; cannot review diligence here because jurisdictional bar applies
Whether the question of diligence is a question of law (reviewable) or fact (nonreviewable)	Penalva: diligence is a legal question subject to review under §1252(a)(2)(D)	Government: diligence is factual; §1252(a)(2)(C) bars review of factual findings about removable criminal aliens	Held: Diligence is a question of fact; appellate review barred by §1252(a)(2)(C)
Whether §1252(a)(2)(C) permits review of Penalva’s petition given other removable convictions	Penalva: some legal questions presented justify review under §1252(a)(2)(D) savings clause	Government: Penalva is removable under enumerated criminal grounds; §1252(a)(2)(C) precludes review of factual determinations	Held: Penalva is removable under §1227 provisions; §1252(a)(2)(C) applies and deprives court of jurisdiction over fact issues
Procedural adequacy of Lozada showing and prejudice from counsel’s alleged ineffectiveness	Penalva: counsel ineffective for failing to challenge aggravated-felony classification; Lozada compliance not determinative	Government: Penalva failed Lozada requirements and cannot show prejudice because ineligible for cancellation	Held: BIA found Lozada noncompliance and lack of prejudice; court did not reach merits due to jurisdictional bar

Key Cases Cited

Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir.) (standard for BIA abuse of discretion review)
Zhao v. Gonzales, 404 F.3d 295 (5th Cir.) (abuse-of-discretion standard discussion)
Rodriguez v. Holder, 705 F.3d 207 (5th Cir.) (jurisdictional inquiry standard)
Nehme v. INS, 252 F.3d 415 (5th Cir.) (jurisdiction review principles)
Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir.) (jurisdiction under INA)
Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir.) (holding motion-to-reopen deadline subject to equitable tolling; equitable tolling is fact-intensive)
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (U.S.) (equitable-tolling test elements)
Boakai v. Gonzales, 447 F.3d 1 (1st Cir.) (disallowing appellate review of factual due-diligence findings on equitable tolling)