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,
JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent.
Petition for Review of an Order of the Board of Immigration
SMITH, WIENER, and WILLETT, Circuit Judges.
E. SMITH, Circuit Judge.
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.
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
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.
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
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.
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.
appealed, and the BIA dismissed for the reasons set forth by
the IJ. Diaz then filed this petition for review.
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.
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. 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 § 1252(a)(2)(D). Therefore, because Diaz
was convicted of possessing a controlled substance (a finding
he does ...