Mendiola v. Holder
576 F. App'x 828
10th Cir.2014Background
- Petitioner Eddie Mendiola, a Peruvian national and lawful permanent resident since 1989, has multiple state convictions including two possession-of-steroids convictions (1996 misdemeanor; 2000 wobbler/treated as felony at sentencing) and an accessory-to-felony conviction. DHS commenced removal in 2004 and the IJ/Board found him removable as an aggravated felon; he was removed in 2005 and subsequently reentered illegally.
- Mendiola filed multiple motions to reopen before the BIA (2007, 2008, 2012). The first two were denied (post-departure bar / jurisdictional rulings); the third sought sua sponte reopening based on intervening law (Carachuri-Rosendo and Contreras-Bocanegra) and alleged ineffective assistance of prior counsel.
- The BIA denied the 2012 motion as untimely and number-barred, rejected equitable tolling based on ineffective assistance (no demonstrated prejudice), and found Mendiola had not shown prima facie eligibility for relief via sua sponte reopening.
- The government argued lack of appellate jurisdiction under 8 U.S.C. §1231(a)(5) and that BIA decisions to deny sua sponte reopening are discretionary and unreviewable.
- The Tenth Circuit held it had jurisdiction to review the legal and constitutional questions under 8 U.S.C. §1252(a)(2)(D), affirmed the BIA on ineffective-assistance and removability aspects of the Carachuri-Rosendo claim, but remanded for clarification whether Carachuri-Rosendo permits a removed person to pursue cancellation of removal from abroad.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over claims despite reinstated removal (§1231(a)(5)) | Mendiola: court can review constitutional or legal claims; unclear whether reinstatement executed | Gov: §1231(a)(5) bars review of reinstated orders | Court: §1252(a)(2)(D) preserves review of constitutional/questions of law; jurisdiction exists |
| Judicial review of BIA refusal to sua sponte reopen | Mendiola: BIA should reopen based on change in law and ineffective assistance | Gov: BIA’s decision to deny sua sponte reopening is discretionary and nonreviewable | Court: Generally no review of discretion, but may review underlying legal/constitutional errors; limited review allowed |
| Ineffective assistance of counsel as basis to equitably toll/time/number bars | Mendiola: prior counsel failed to raise Paulus/federal-schedule arguments; prejudice shown | Gov/BIA: no evidence counsel’s failures caused prejudice; schedules for 1996/2000 not demonstrated to diverge | Held: BIA did not abuse discretion — Mendiola failed to prove prejudice; ineffective-assistance basis rejected |
| Effect of Carachuri‑Rosendo on removability and cancellation eligibility | Mendiola: Carachuri-Rosendo means his convictions may not be aggravated felonies and he may be eligible for cancellation even after removal | Gov/BIA: Even if not an aggravated felon, he remained removable for a controlled-substance offense and removal terminated LPR status, barring cancellation | Held: Court affirmed BIA that Carachuri-Rosendo did not alter removability; but remanded because BIA failed to explain tension with Carachuri‑Rosendo footnote suggesting a removed person may still seek cancellation from abroad |
Key Cases Cited
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state simple-possession qualifies as aggravated felony only if punishable as a felony under federal law)
- Carachuri‑Rosendo v. Holder, 560 U.S. 563 (2010) (recidivist enhancement must be reflected in the state conviction to qualify as a federal aggravated felony; noted a removed person may still seek cancellation under certain circumstances)
- Contreras‑Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc) (invalidated BIA post-departure bar regulation)
- Kucana v. Holder, 558 U.S. 233 (2010) (courts have jurisdiction to review denials of motions to reopen generally; reserved question re: sua sponte motions)
- INS v. Abudu, 485 U.S. 94 (1988) (BIA may deny reopening even if movant makes a prima facie case)
- Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007) (§1252(a)(2)(D) permits review of legal/constitutional claims despite §1231(a)(5))
- Mickeviciute v. INS, 327 F.3d 1159 (10th Cir. 2003) (review limited to agency’s stated grounds; court cannot affirm on unarticulated bases)