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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10231
Non-Argument Calendar
________________________
Agency No. A205-358-855
LEONARDO ESPARZA-DIAZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 22, 2016)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Leonardo Esparza-Diaz, proceeding through counsel, seeks review of the
Board of Immigration Appeals (“BIA”) order denying his second motion to reopen
removal proceedings as both time- and number-barred, 8 C.F.R. § 1003.2(a). On
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appeal, Esparza-Diaz argues that: (1) the ineffective assistance rendered by his
three prior attorneys warrants equitable tolling of the time- and number-bar on
motions to reopen; and (2) the BIA relied on an incorrect legal premise in refusing
to use its authority to sua sponte reopen his removal proceedings. After careful
review, we deny the petition in part, and dismiss it in part.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
namely, whether the BIA exercised its administrative discretion in an arbitrary or
capricious manner. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226
(11th Cir. 2008). “The moving party bears a heavy burden” because “motions to
reopen are disfavored, especially in removal proceedings.” Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
The BIA shall not grant a motion to reopen unless:
[I]t appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the
former hearing; nor shall any motion to reopen for the purpose of affording
the alien an opportunity to apply for any form of discretionary relief be
granted if it appears that the alien’s right to apply for such relief was fully
explained to him or her and an opportunity to apply therefore was afforded
at the former hearing, unless the relief is sought on the basis of
circumstances that have arisen subsequent to the hearing. Subject to . . .
other requirements and restrictions . . . , a motion to reopen proceedings for
consideration or further consideration of an application for relief under
section 212(c) of the Act (8 U.S.C. 1182(c)) 1 may be granted if the alien
1
The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) repealed former
8 U.S.C. § 1182(c), which governed suspension of deportation, and replaced it with 8 U.S.C. §
1229b, which governs cancellation of removal. Mohammed v. Ashcroft, 261 F.3d 1244, 1248
n.3 (11th Cir. 2001).
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demonstrates that he or she was statutorily eligible for such relief prior to the
entry of the administratively final order of deportation.
8 C.F.R. § 1003.2(c)(1). We have held that, “[a]t a minimum, there are at least
three independent grounds upon which the Board may deny a motion to reopen: (1)
failure to establish a prima facie case; (2) failure to introduce evidence that was
material and previously unavailable; and (3) a determination that despite the alien’s
statutory eligibility for relief, he or she is not entitled to a favorable exercise of
discretion.” Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
An alien may file one motion to reopen within 90 days of the date on which
a final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7). This 90-day
time limit is a non-jurisdictional claim-processing rule, and is thus subject to
equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1365 (11th
Cir. 2013) (en banc). And although we have not specifically answered whether the
rule allowing just one motion is also subject to equitable tolling, we’ve suggested
that it is. See Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 850 (11th Cir. 2013).
In Ruiz-Turcios, we noted that “equitable tolling is a threshold showing that must
be made before the merits of the claim or claims underlying a motion to reopen can
be considered.” Id. at 851. “[E]quitable tolling generally requires a litigant to
show (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way.” Id. (quotation omitted).
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The facts underlying a claim of ineffective assistance of counsel may serve
as both a basis for equitable tolling and the merits of a motion to reopen, though
the standards for each are distinct. Id. While an alien in removal proceedings does
not have a Sixth Amendment right to counsel, he does have a “constitutional right
under the Fifth Amendment Due Process Clause right to a fundamentally fair
hearing to effective assistance of counsel where counsel has been obtained.”
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005) (quotation and
emphasis omitted). To establish ineffective assistance of counsel in a deportation
hearing, an alien must show that his “counsel’s performance was deficient to the
point that it impinged upon the fundamental fairness of the hearing such that the
alien was unable to reasonably present his [] case.” Id. at 1274 (quotation omitted)
(concerning a timely first motion to reopen). Additionally, an alien claiming
ineffective assistance of counsel must show he was prejudiced by counsel’s
deficient performance, meaning there is a reasonable probability that but for
counsel’s error, the outcome of the proceedings would have been different. Id.
In Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999), the alien
argued that a time-barred motion to reopen was the fault of counsel. We held that
the alien could not establish ineffective assistance of counsel if the deficient
representation merely prevents the alien from being eligible for suspension of
deportation, because that kind of relief was discretionary. Id. at 1146-48. We
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reasoned that deficient representation does not deprive an alien of due process,
because the chances of receiving such relief “are too speculative, and too far
beyond the capability of judicial review, to conclude that the alien has actually
suffered prejudice from being ineligible….” Id. at 1148. We have since applied
our holding in Mejia Rodriguez to conclude that an alien cannot raise a due process
challenge based on the denial of cancellation of removal. See Mohammed, 261
F.3d at 1248 n.3, 1250-51.
The Attorney General has discretion to cancel the removal of an alien who
demonstrates, in relevant part, that he has not been convicted of certain offenses,
including certain firearm offenses, as set forth in 8 U.S.C. § 1227(a)(2)(C). 8
U.S.C. § 1229b(b)(1). As for the disqualifying firearm offenses, an alien is not
eligible for cancellation of removal if he has been convicted under any law of
possessing or carrying a firearm or destructive device, as defined in 18 U.S.C. §
921(a). 8 U.S.C. § 1229b(b)(1); 8 U.S.C. § 1227(a)(2)(C). Section 921(a) defines
“firearm” as “(A) any weapon (including a starter gun) which will or is designed to
or may readily be converted to expel a projectile by the action of an explosive; (B)
the frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3).
Here, the BIA did not abuse its discretion in denying Esparza-Diaz’s second
motion to reopen as both time- and number-barred. Esparza-Diaz claims that his
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previous attorneys were ineffective for failing to proffer evidence to show that his
prior Florida conviction for open carrying of a weapon was not a firearm offense
that would statutorily disqualify him from cancellation of removal. However, this
argument is premised on the notion that his attorneys’ failing resulted in the denial
of his application for cancellation -- a discretionary form of relief. Under Mejia
Rodriguez, 178 F.3d at 1146-48, Esparza-Diaz cannot establish that he was
prejudiced by his counsels’ alleged ineffective assistance. As we explained there,
any deficient representation by Esparza-Diaz’s counsel could not have deprived
him of due process since the chances of him receiving such relief “are too
speculative, and too far beyond the capability of judicial review, to conclude that
the alien has actually suffered prejudice from being ineligible.” Id. at 1148.
Accordingly, the BIA did not abuse its discretion in determining that Esparza-Diaz
did not establish that “exceptional circumstances” in his case warranted equitable
tolling. Thus, we deny Esparza-Diaz’s petition as to this claim.
As for Esparza-Diaz’s challenge to the BIA’s refusal to exercise its sua
sponte authority to reopen his removal proceedings, we lack jurisdiction over this
issue. We’ve previously recognized that we lack jurisdiction to hear an appeal of
the BIA’s denial of a motion to reopen based on its sua sponte authority. Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). In Mata v. Lynch, 135
S. Ct. 2150 (2015), the Supreme Court reversed and remanded a case when the
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Fifth Circuit determined that it lacked jurisdiction to review the BIA’s denial of a
motion to reopen where the BIA had both denied the motion as untimely and
refused to exercise its sua sponte authority to reopen. Id. at 2154-56. However,
the Supreme Court did not determine that the Fifth Circuit erred in determining
that it lacked jurisdiction to review the BIA’s refusal to sua sponte reopen the
removal proceedings. Id. at 1255. Instead, it determined that, even assuming
arguendo that the Fifth Circuit lacked jurisdiction to review the BIA’s refusal to
sua sponte reopen the proceedings, that refusal did not strip the Fifth Circuit of its
jurisdiction to address the BIA’s denial of the statutory motion to reopen as
untimely. Id. We have since held that Mata did not alter the holding in Lenis, and
that we lack jurisdiction to review the BIA’s denial to exercise its authority to sua
sponte reopen the removal proceedings. Butka v. U.S. Att’y Gen., 827 F.3d 1278,
1285-86 (11th Cir. 2016).
We are therefore bound under our precedent to hold that we lack jurisdiction
to review the BIA’s determination that no “extraordinary circumstances” existed to
warrant the exercise of its authority to sua sponte reopen removal proceedings.
See Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292-93. As we’ve explained,
Mata did not provide that appellate courts have the jurisdiction to review the BIA’s
refusal to reopen removal proceedings sua sponte. See Butka, 827 F.3d at 1285-
86. Therefore, we dismiss Esparza-Diaz’s petition as to this claim.
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PETITION DENIED IN PART, DISMISSED IN PART.
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