15-2778
Diaz-Tineo v. Sessions
BIA
A013 730 956
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 26th day of April, two thousand seventeen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 NICANOR DIAZ-TINEO,
14 Petitioner,
15
16 v. 15-2778
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lilin M. Ciccarone, CMA Law Group,
24 PLLC, Long Island City, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John W.
28 Blakeley, Assistant Director; Kate
29 D. Balaban, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED in part and DISMISSED in part.
5 Petitioner Nicanor Diaz-Tineo, a native and citizen of the
6 Dominican Republic, seeks review of an August 5, 2015, decision
7 of the BIA denying his motion to reopen deportation proceedings.
8 In re Nicanor Diaz-Tineo, No. A013 730 956 (B.I.A. Aug. 5, 2015).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 Our jurisdiction is constrained in two ways. First, we
12 have jurisdiction to consider only constitutional claims and
13 questions of law in a petition for review of an order denying
14 a statutory motion to reopen filed by an alien, such as
15 Diaz-Tineo, whose order of deportation was based on a conviction
16 for a controlled substance offense. See 8 U.S.C.
17 § 1252(a)(2)(C), (D); Durant v. U.S. INS, 393 F.3d 113, 115 (2d
18 Cir. 2005). Second, our review of the denial of a regulatory
19 (i.e., sua sponte) motion to reopen is extremely limited. See
20 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Ali v.
21 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
2
1 Statutory Motion to Reopen
2 There are no constitutional claims or questions of law
3 arising from the BIA’s determination that Diaz-Tineo’s
4 statutory motion to reopen was untimely and that he failed to
5 satisfy one of the exceptions to the applicable time limit. See
6 8 U.S.C. § 1229a(c)(7)(C) (listing exceptions); 8 C.F.R.
7 § 1003.2(c)(3) (same). Here, the BIA considered whether
8 equitable tolling or the equitable remedy of nunc pro tunc
9 relief were warranted to overcome the untimeliness of
10 Diaz-Tineo’s motion.
11 The BIA did not err as a matter of law in determining that
12 equitable tolling was not warranted because Diaz-Tineo did not
13 demonstrate that extraordinary circumstances prevented him
14 from timely filing his motion. See Walker v. Jastremski, 430
15 F.3d 560, 564 (2d Cir. 2005); see also Valverde v. Stinson, 224
16 F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’ requires the
17 petitioner to demonstrate a causal relationship between the
18 extraordinary circumstances on which the claim for equitable
19 tolling rests and the lateness of a filing.”). Accordingly,
20 the petition for review is dismissed to this extent.
3
1 We conclude, however, that the BIA erred as a matter of law
2 by failing to provide any justification for its determination
3 that nunc pro tunc relief was unwarranted. See Xiao Ji Chen
4 v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)
5 (providing that a question of law “arise[s] where a
6 discretionary decision . . . was made without rational
7 justification or based on a legally erroneous standard.”).
8 “The equitable remedy of nunc pro tunc (literally ‘now for
9 then’) relief has a long and distinguished history in the field
10 of immigration law.” Edwards v. INS, 393 F.3d 299, 308 (2d Cir.
11 2004). Such relief may be awarded in the interests of justice
12 to “mitigat[e] potentially harsh results of the immigration
13 laws” and “should be available whenever necessary to put the
14 victim of agency error in the position he or she would have
15 occupied but for the error.” Id. at 308, 310 (internal
16 brackets, ellipses, and quotation marks omitted). “Therefore,
17 where agency error has prevented an alien from seeking
18 deportation relief, justice . . . requires, that the agency
19 rectify that error—and that it do so, if necessary, by means
20 of nunc pro tunc relief.” Id. at 311 (internal brackets and
21 quotation marks omitted).
4
1 Here, as in Edwards, Diaz-Tineo was deprived of the
2 opportunity to apply for a waiver of deportation under former
3 Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C.
4 § 1182(c), based on an interpretation of the INA that was later
5 deemed legally erroneous. First, in 2004, the agency amended
6 its regulations “to provide that the 1990 amendment barring the
7 availability of section 212(c) relief for aggravated felons who
8 ha[d] served a term of at least five years for one or more
9 aggravated felonies w[ould] not . . . bar the eligibility of
10 aliens with respect to any aggravated felony conviction
11 pursuant to a plea agreement that was made prior to November
12 29, 1990, the date that amendment was enacted.” Executive
13 Office for Immigration Review; Section 212(c) Relief for Aliens
14 With Certain Criminal Convictions, 69 Fed. Reg. 57826-01,
15 57830-31 (Apr. 1, 1997) (codified at 8 C.F.R.
16 § 1212.3(f)(4)(ii)). Second, in Matter of Abdelghany, 26 I.
17 & N. Dec. 254 (B.I.A. 2014), the BIA held that deportable lawful
18 permanent residents convicted after trial should be treated “no
19 differently for purposes of [§] 212(c) eligibility than . . .
20 [those] convicted by means of plea agreements.” 26 I. & N. Dec.
21 at 268. Accordingly, based on the 2004 regulatory amendment
5
1 and post-Abdelghany interpretation of the INA, Diaz-Tineo,
2 whose 1980 convictions were obtained after trial, is
3 statutorily eligible for § 212(c) relief. See 8 C.F.R.
4 § 1212.3(f)(4)(ii); see also Abdelghany, 26 I. & N. Dec. at 268.
5 The BIA’s failure to provide any basis for finding nunc pro tunc
6 relief unavailable to excuse the filing deadline for
7 Diaz-Tineo’s motion to reopen requires remand. See Edwards,
8 393 F.3d at 309-12.
9 Regulatory Motion to Reopen
10 Diaz-Tineo also challenges the BIA’s decision not to
11 exercise its discretionary authority to reopen sua sponte. The
12 90-day time limitation applicable to a statutory motion to
13 reopen does not apply to a regulatory motion to reopen. See
14 8 C.F.R. § 1003.2(a). Although we may remand if the BIA
15 “misperceived the legal background and thought, incorrectly,
16 that a reopening would necessarily fail,” Mahmood v. Holder,
17 570 F.3d 466, 469 (2d Cir. 2009), there was no such misperception
18 here: the BIA did not conclude that an application for § 212(c)
19 relief would necessarily fail. Accordingly, we lack
20 jurisdiction over Diaz-Tineo’s petition to this extent. See
21 Ali, 448 F.3d at 518; Mahmood, 570 F.3d at 469.
6
1 For the foregoing reasons, the petition for review is
2 GRANTED in part and DISMISSED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion for
5 a stay of removal in this petition is DISMISSED as moot. Any
6 pending request for oral argument in this petition is DENIED
7 in accordance with Federal Rule of Appellate Procedure
8 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
7