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Penalva v. Sessions

United States Court of Appeals, Fifth Circuit

February 28, 2018

MARIA NATALIA PENALVA, also known as Maria Natalia Penalva Cari, Petitioner,
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent.

         Petition for Review of an Order of the Board of Immigration Appeals

          Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

          JENNIFER WALKER ELROD, CIRCUIT JUDGE.

         Petitioner Maria Natalia Penalva filed a motion to reopen her removal proceedings in immigration court after the statutory deadline. The immigration judge denied her motion, and the Board of Immigration Appeals affirmed. Because whether equitable tolling applies to Penalva's motion to reopen is a question of fact and the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies, we DISMISS Penalva's petition for lack of jurisdiction.

         I.

         Maria Natalia Penalva, a native and citizen of Argentina, was admitted to the United States as a lawful permanent resident. She pleaded nolo contendere to a charge of theft and to a charge of possession of cocaine. Later, she was convicted of grand theft and of access device fraud in violation of 18 U.S.C. § 1029. She was sentenced to two years in prison and three years of supervised release.

         In 2009, the government initiated removal proceedings against Penalva. The Notice to Appear alleged that she was removable under the following statutory provisions: (1) 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien who, after admission, had been convicted of two crimes involving moral turpitude; (2) 8 U.S.C. § 1227(a)(2)(B)(i) as an alien who, after admission, had been convicted of a controlled substance violation; and (3) 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who, after admission, had been convicted of an aggravated felony.

         At the hearing before the Immigration Judge (IJ), Penalva denied all charges of removability. After reviewing Penalva's criminal records, the immigration judge issued an order finding that Penalva was removable as charged. Penalva did not appeal the IJ's decision, and she was removed from the United States in 2010.

         In 2015, Penalva filed a motion to reopen her removal proceedings. She argued that her motion to reopen should be considered timely- notwithstanding the fact that it was filed more than five years after her order of removal became final-under the doctrine of equitable tolling. She argued that her former attorney was ineffective for failing to object or otherwise argue that her conviction for access device fraud was not an aggravated felony. Penalva argued that because the immigration court considered her access device fraud crime an aggravated felony, she was ineligible for cancellation of removal. Without an aggravated felony, she would be prima facie eligible for cancellation of removal, and so she attached an application for such relief to her motion to reopen.

         The IJ denied Penalva's motion to reopen for several reasons. First, the IJ found that the motion to reopen was untimely. The IJ rejected Penalva's argument that the 90-day limitations period for filing a motion to reopen was subject to equitable tolling. Moreover, the IJ found that even if equitable tolling applied, Penalva would not be entitled to relief because her prior aggravated felony made her ineligible for cancellation of removal. The IJ also rejected Penalva's argument that her prior conviction for access device fraud was not an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i).

         The IJ went on to explain that even if Penalva had been eligible for cancellation of removal and her attorney had been ineffective for failing to challenge her prior aggravated felony, her motion to reopen would still be denied because Penalva had failed to comply with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

         On appeal, the Board of Immigration Appeals (BIA) agreed with the IJ's denial of Penalva's motion to reopen and dismissed the appeal. The BIA concluded that even if equitable tolling applied to the 90-day statutory deadline, Penalva had failed to demonstrate that she diligently sought to reopen the removal proceedings to warrant equitable tolling. The BIA also agreed with the IJ that Penalva had failed to comply with the requirements of Matter of Lozada. Even if she had complied with these requirements, the BIA determined, Penalva's claim of ineffective assistance of counsel would fail because she was ineligible for cancellation of removal, given her prior criminal convictions, and thus, she could not show prejudice.

         II.

         We review "the denial of a motion to reopen 'under a highly deferential abuse-of-discretion standard.'" Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (quoting Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)). "The Board abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes ...


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