Carranza v. Sessions ( 2017 )

15-671
Carranza v. Sessions
BIA
A094 095 153
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 8th day of May, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CORNELIO CARRANZA,
14 Petitioner,
15
16 v. 15-671
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Perham Makabi, Kew Gardens, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Shelley
27 R. Goad, Assistant Director; Kristen
28 Giuffreda Chapman, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
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 DENIED.
5 Petitioner Cornelio Carranza, a native and citizen of El
6 Salvador, seeks review of a February 3, 2015, decision of the
7 BIA denying his motion to reopen. In re Cornelio Carranza, No.
8 A094 095 153 (B.I.A. Feb. 3, 2015). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 in this case.
11 We find no abuse of discretion in the BIA’s denial of
12 reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69
13 (2d Cir. 2008) (reviewing denial of reopening for abuse of
14 discretion). It is undisputed that Carranza’s motion to reopen
15 was untimely filed because the agency’s order of removal became
16 final in 2010 and Carranza did not file his motion to reopen
17 until 2014, well beyond the 90-day deadline. See 8 U.S.C.
18 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
19 The BIA did not err in declining to equitably toll the
20 period for Carranza to file his motion based on his claim that
21 his former attorneys were ineffective for failing to reregister
22 him for temporary protected status (“TPS”). Even assuming that
2
1 prior counsel was ineffective, Carranza had to demonstrate “due
2 diligence” in pursuing his claim during “both the period of time
3 before the ineffective assistance of counsel was or should have
4 been discovered and the period from that point until the motion
5 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d
6 Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
7 2006).
8 Carranza failed to demonstrate due diligence in pursuing
9 his ineffective assistance claim. Carranza submitted evidence
10 that, after this Court denied his petition for review of his
11 removal order in July 2011, he applied for TPS in December 2011
12 and hired a new attorney to submit additional evidence in
13 support of that application in February 2013 after receiving
14 a notice that the U.S. Citizenship and Immigration Service
15 (“USCIS”) intended to deny TPS reregistration. He further
16 claimed that, after being detained for removal in September
17 2014, he hired another attorney, who informed him that he could
18 raise an ineffective assistance claim and moved to reopen on
19 his behalf.
20 Carranza argues that the BIA erred in assuming that he
21 should have discovered the ineffective assistance of his former
22 attorneys when the Court denied his petition in July 2011. This
3
1 argument lacks merit for two reasons. First, Carranza
2 reapplied for TPS in December 2011, five months after this
3 Court’s denial of his petition, thereby indicating that he was
4 aware of the basis for his claim that his former attorneys should
5 have reregistered for TPS at that time rather than in September
6 2014 as he suggests. Second, the BIA alternatively found that,
7 even if he was not aware of the claim immediately after this
8 Court’s July 2011 decision, he met with a new attorney regarding
9 USCIS’s intent to deny him TPS reregistration in February 2013,
10 yet he did not take any action to pursue reopening for more than
11 one year after that. On this record, the BIA did not err in
12 concluding that Carranza had, or should have, discovered the
13 basis for his ineffective assistance of counsel claim at some
14 point during the more than one year that passed between this
15 Court’s July 2011 decision denying his petition for review of
16 his final order of removal and his February 2013 meeting with
17 a new attorney regarding his TPS application. See Rashid, 533
18 F.3d at 132-33.
19 Carranza further argues that, even if he should have
20 discovered his former counsel’s ineffective assistance
21 earlier, he acted diligently after the Court’s July 2011
22 decision given that his application to reregister for TPS was
4
1 pending with USCIS between December 2011 and the filing of his
2 motion to reopen in September 2014. That application with
3 USCIS does not establish that he diligently pursued reopening
4 of his removal proceedings based on ineffective assistance.
5 And given that the statutory time period for timely filing a
6 motion to reopen is 90 days from the date of the final order
7 of removal, 8 U.S.C. § 1229a(c)(7)(C)(i), the BIA did not err
8 in determining that Carranza’s unexplained delay of more than
9 one year—from when he spoke to a new attorney in February 2013
10 and the filing of his motion in September 2014—showed a lack
11 of due diligence. See Jian Hua Wang v. BIA, 508 F.3d 710, 715
12 (2d Cir. 2007). The lack of diligence finding was dispositive
13 of Carranza’s motion insofar as he sought reopening or equitable
14 tolling based on ineffective assistance. See Rashid, 533 F.3d
15 at 131.
16 Carranza does not challenge the BIA’s alternative bases for
17 denying his motion—his failure to establish either his prima
18 facie eligibility for the underlying relief sought so as to
19 warrant sua sponte reopening or changed country conditions
20 excusing his untimely filing. Accordingly, we do not reach
21 those rulings. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
22 541 n.1, 545 n.7 (2d Cir. 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. Carranza’s request for oral argument is DENIED in
3 accordance with Federal Rule of Appellate Procedure 34(a)(2),
4 and Second Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
6