MARIA NATALIA PENALVA, also known as Maria Natalia Penalva Cari, Petitioner,
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent.
for Review of an Order of the Board of Immigration Appeals
WIENER, ELROD, and SOUTHWICK, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE.
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.
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.
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
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.
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.
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).
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).
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.
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 ...