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Diaz v. Sessions

United States Court of Appeals, Fifth Circuit

June 28, 2018

FELIX GERARDO DIAZ, Also Known as Felix Gerardo Macanche Diaz, Also Known as Feliz G. Diaz, Also Known as Feliz Diaz, Also Known as Gelix Gerardo Diaz Macanche, Petitioner,
v.
JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent.

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

          Before SMITH, WIENER, and WILLETT, Circuit Judges.

          JERRY E. SMITH, Circuit Judge.

         Felix Diaz petitions for review of the denial of his motion to reopen his application for cancellation of removal. Because Diaz has effectively conceded he was convicted of felony possession of a controlled substance, we have jurisdiction over only constitutional claims or questions of law. Compare 8 U.S.C. § 1252(a)(C) with id. § 1252(a)(D). The Board of Immigration Appeals ("BIA") and immigration judge ("IJ") denied the motion to reopen as untimely and not subject to equitable tolling because Diaz had not shown ineffective assistance of counsel ("IAC"). Insofar as Diaz raises a constitutional claim of IAC, we have jurisdiction to resolve both that question of law and any factual questions necessary to its resolution. But because Diaz has not shown IAC, we deny the petition.

         I.

         Diaz is a Nicaraguan citizen who obtained status as a lawful permanent resident ("LPR") in December 1999. In 2001, he was convicted of driving while intoxicated. In 2007, he was convicted of felony possession of a controlled substance, namely cocaine. And in 2010, he was convicted of public intoxication. Then, in 2015, he arrived at a Houston airport and applied for admission to the United States as a returning LPR. Shortly thereafter, the Department of Homeland Security ("DHS") served him with a Notice to Appear ("NTA"), charging inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (conviction relating to a controlled substance).

         At the initial hearing, in July 2015, Diaz appeared with counsel. He admitted several factual allegations in the NTA but denied having committed the disqualifying drug offense. Nevertheless, the IJ found the charge to be true based on records of conviction and, because Diaz then pleaded true to the charge, the IJ found him inadmissible. Nicaragua was designated the country of removal.

         In October 2015, Diaz, through counsel, filed an application for cancellation of removal. A merits hearing was held in November 2015, at which Diaz admitted that he and his wife had lied on their tax returns to obtain refunds and to qualify for Medicaid and food stamps. After that testimony, Diaz, through counsel, withdrew his application for cancellation of removal and requested that the IJ permit voluntary departure. The IJ granted that request, and Diaz waived appeal.

         In September 2016, Diaz moved to reopen, asserting that counsel for his application for cancellation was ineffective. Specifically, he maintained that he was eligible for cancellation of removal as an LPR but was prevented from pursuing such relief because of ineffectiveness. DHS opposed the motion as time-barred. See 8 U.S.C. § 1229a(c)(7)(C)(i). Diaz replied that (a) he met the procedural requirements for demonstrating IAC under Matter of Lozada, 19 I & N Dec. 637, 638 (BIA 1988); (b) his prima facie eligibility for cancellation of removal demonstrated the requisite prejudice to establish IAC; and (c) his showing of IAC was an exceptional circumstance warranting equitable tolling. Alternatively, Diaz urged that his personal history and other equities warranted exercise of the IJ's discretion to reopen sua sponte.

         The IJ denied the motion to reopen as untimely. The IJ declined equitable tolling because, although Diaz had met Lozada's procedural requirements, he had not been prevented from reasonably presenting his case and had not shown prejudice by his counsel's performance. Specifically, the IJ found that, given Diaz's admissions of tax fraud, it was not unreasonable for counsel to advise him to withdraw his application for cancellation of removal and to request voluntary departure.

         Diaz appealed, and the BIA dismissed for the reasons set forth by the IJ. Diaz then filed this petition for review.

         II.

         In his petition, Diaz reiterates his IAC claims, alleging that they establish he was deprived of due process in his application for cancellation of removal. But before addressing the merits of those claims, we must assess "whether we have jurisdiction to review the BIA's decision." Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013) (quoting Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001)). The government replies we lack jurisdiction because Diaz was convicted of possessing a controlled substance, and his claims are essentially factual in nature. We disagree.

         We generally have jurisdiction to review orders of removal and orders to reopen. See Kucana v. Holder, 558 U.S. 233, 252-53 (2010). But our jurisdiction is limited where the defendant was convicted of possessing a controlled substance.[1] In such situations, § 1252(a)(2)(C) strips our jurisdiction-except that "[n]othing in subparagraphs (B) or (C) . . . shall be construed as precluding review of constitutional claims or questions of law." Compare § 1252(a)(2)(C) with ยง 1252(a)(2)(D). Therefore, because Diaz was convicted of possessing a controlled substance (a finding he does ...


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