Case: 20-60534 Document: 00515763375 Page: 1 Date Filed: 03/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 2, 2021
No. 20-60534
Summary Calendar Lyle W. Cayce
Clerk
Raquel Garcia-Tinoco,
Petitioner,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 839 027
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Raquel Garcia-Tinoco, a native and citizen of Mexico, petitions for
review of an order by the Board of Immigration Appeals (BIA) denying her
second motion to reopen her immigration proceedings, based on a
determination that it was untimely and number-barred. She contends that
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60534
she has established ineffective assistance by the attorney who represented her
in her removal proceedings, who failed to file an application for immigration
relief and failed to update her about deadlines and hearings in her case. In
addition, Garcia-Tinoco maintains that the attorney who filed her first
motion to reopen rendered ineffective assistance by failing to comply with
Matter of Lozada, 19 I. & N. Dec. 637, 637-40 (BIA 1988), when alleging that
the prior attorney had rendered ineffective assistance. She asserts that she
suffered prejudice because she was deprived of the opportunity to file for
relief from removal and because the immigration courts denied her prior
motion to reopen. Although Garcia-Tinoco acknowledges that her second
motion to reopen did not comply with the rules for filing such motions, she
argues that the BIA abused its discretion by not granting equitable tolling.
Finally, she asserts that the BIA erred in not granting her motion to reopen
pursuant to its sua sponte authority.
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.
2000). Although a single motion to reopen must generally be filed within 90
days of the entry of a final order of removal, this deadline is subject to
equitable tolling. Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016).
An alien is entitled to equitable tolling if she shows “that [s]he has been
pursuing [her] rights diligently, and . . . that an extraordinary circumstance
beyond [her] control prevented [her] from complying with the applicable
deadline.” Id. (internal quotation marks and citation omitted). Ineffective
assistance of counsel may constitute an extraordinary circumstance justifying
equitable tolling of the deadline for seeking statutory reopening. Diaz
v. Sessions, 894 F.3d 222, 227 (5th Cir. 2018).
Although Garcia-Tinoco argues that her original attorney performed
deficiently by failing to file an application for relief from removal and failing
to advise her of deadlines and hearings, she has failed to demonstrate that the
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No. 20-60534
attorney performed deficiently or that she was prejudiced because she has not
shown that she was entitled to any relief from the immigration courts. See
Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994). Similarly, although the
second attorney did not comply with Lozada before filing a motion to reopen,
Garcia-Tinoco has not shown “‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different’” and the BIA would have reopened the case, given the alternative
finding that the record did not establish ineffective assistance by Garcia-
Tinoco’s first attorney. Diaz, 894 F.3d at 228 (citation omitted).
Accordingly, the BIA did not abuse its discretion in determining that Garcia-
Tinoco was not entitled to equitable tolling. See id.
Finally, despite Garcia-Tinoco’s assertions to the contrary, we lack
jurisdiction to review the discretionary decision of the BIA not to invoke its
sua sponte authority to reopen a case. Hernandez-Castillo v. Sessions, 875
F.3d 199, 206 (5th Cir. 2017). Although Garcia-Tinoco urges us to follow
case law from other circuits that have found an appropriate standard exists
for reviewing a decision to reopen a case, such authority is not on point.
Moreover, such cases constitute persuasive authority only, and this court
may not overrule its own authority in the absence of a change in statutory law
or a decision by the Supreme Court or this court seated en banc. See
Thompson v. Dallas City Att’y’s Office, 913 F.3d 464, 467 (5th Cir. 2019);
Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012); see also
Hernandez-Castillo, 875 F.3d at 206-07 & n.3 (rejecting argument that this
court’s precedent was altered by Mata v. Lynch, 576 U.S. 143 (2015)).
Based on the foregoing, the petition for review is DENIED in part
and DISMISSED in part.
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