Emilio Trevino v. William Barr, U. S. Atty Gen ( 2019 )

Case: 18-60504 Document: 00514968960 Page: 1 Date Filed: 05/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60504 May 23, 2019
Summary Calendar
Lyle W. Cayce
Clerk
EMILIO TREVINO,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A013 536 911
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Emilio Trevino was removed from the United States in 2004, based on
his conviction of an aggravated felony in 1991. He filed a motion to reopen his
removal proceedings in 2017. He petitions for review of the decision of the
Board of Immigration Appeals (BIA) affirming the order of the Immigration
Judge (IJ) denying his motion to reopen removal proceedings. The BIA found
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60504 Document: 00514968960 Page: 2 Date Filed: 05/23/2019
No. 18-60504
that Trevino’s motion was untimely and declined to exercise its sua sponte
discretion to reopen the removal proceedings.
Trevino argues that the IJ and BIA erred in denying his motion to reopen
as untimely. He contends that he invoked equitable tolling by arguing for
estoppel by laches, misrepresentation, and negligence, arguing that the
Government is estopped from invoking the statute of limitations where its own
fraudulent conduct in his criminal proceedings has prevented him from filing
his motion to reopen within the applicable period.
We have jurisdiction to review a request for equitable tolling of a motion
to reopen. Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). However, we lack
jurisdiction to review a removal order against an alien who is removable under
8 U.S.C. § 1227(a)(2)(A)(iii) due to the commission of an aggravated felony. 8
U.S.C. § 1252(a)(2)(C); see Arce-Vences v. Mukasey, 512 F.3d 167, 170 (5th Cir.
2007). Section 1252(a)(2)(C) also bars review of the denial of a motion to reopen
any such removal order. See Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018);
Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004). We retain jurisdiction
to review constitutional claims or questions of law. § 1252(a)(2)(D); Diaz, 894
F.3d at 226.
In determining whether equitable tolling is appropriate, “[c]ourts must
consider the individual facts and circumstances of each case.” Lugo-Resendez
v. Lynch, 831 F.3d 337, 344-45 (5th Cir. 2016). We have held that whether an
alien acted diligently in attempting to reopen removal proceedings for purposes
of equitable tolling is a factual question. Penalva v. Sessions, 884 F.3d 521,
525 (5th Cir. 2018). When the application of the jurisdictional bar of 8 U.S.C.
§ 1252(a)(2)(C) turns on questions of fact, we do not have jurisdiction to
consider petition for review. Penalva, 884 F.3d at 526.
2
Case: 18-60504 Document: 00514968960 Page: 3 Date Filed: 05/23/2019
No. 18-60504
The IJ and the BIA found that Trevino had not established that equitable
tolling was warranted. They made this determination even though Trevino
had not actually raised a clear claim of equitable tolling supported by any facts
in his motion to reopen or his brief to the BIA. As he does now, his arguments
regarding the statute of limitations were made in terms of “estoppel” based on
the conduct of the Government in his criminal proceedings which he contended
prevented the Government from invoking the statute of limitations.
In view of the applicability of the jurisdictional bar in Section
1252(a)(2)(C), and considering that Trevino raises no constitutional claim or
question of law challenging the IJ’s and BIA’s determinations that he had not
established equitable tolling, we lack jurisdiction to consider the factual
question whether Trevino acted diligently in attempting to reopen his removal
proceedings. See Penalva, 884 F.3d at 524-26. This portion of his petition for
review is DISMISSED.
Trevino also invokes the immigration court’s regulatory power to sua
sponte reopen proceedings under 8 C.F.R. § 1003.23(b) and 8 C.F.R. § 1003.2.
He argues that the BIA abused its discretion by failing to reopen his case in
violation of the regulations. We lack jurisdiction to review the BIA’s decision
not to exercise its discretion to grant Trevino’s motion to reopen sua sponte.
See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004). That
precedent was not altered by Mata or Kucana v. Holder, 558 U.S. 233, 242-253
(2010). See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206-07 & n.3 (5th
Cir. 2017). This portion of his petition is therefore DISMISSED. See
Hernandez-Castillo, 875 F.3d at 209.
Trevino argues that the BIA abused its discretion by failing to take into
account his claim of ineffective assistance of trial counsel in his criminal
proceedings based on counsel’s failure to inform him that his guilty plea carried
3
Case: 18-60504 Document: 00514968960 Page: 4 Date Filed: 05/23/2019
No. 18-60504
a risk of deportation in violation of Padilla v. Kentucky, 559 U.S. 356 (2010);
his trial counsel’s collusion with the Government to coerce him to plead guilty
under a plea agreement without advising him of the sentence he was likely to
receive; and his trial counsel’s failure to file a motion to suppress evidence
obtained as a result of his illegal arrest (exclusionary rule). He also alleges a
violation of the Speedy Trial Act. 1
Even if these arguments pose a constitutional claim that we may review,
the IJ and BIA did not abuse their discretion in denying Trevino’s motion to
reopen on the basis that his guilty plea was invalid due to ineffective assistance
of counsel. Trevino’s argument that his conviction should not form the basis
for his removal because counsel rendered ineffective assistance in connection
with the conviction is essentially a collateral attack on a prior conviction.
“Once the conviction becomes final, it provides a valid basis for deportation
unless it is overturned in a judicial post-conviction proceeding.” See Brown v.
INS, 856 F.2d 728, 731 (5th Cir. 1988); see also Zinnanti v. INS, 651 F.2d 420,
421 (5th Cir. 1981). Padilla did not involve an appeal of an adverse
immigration decision and thus does not indicate that an alien in immigration
proceedings may collaterally attack his prior conviction by pursuing a claim of
ineffective assistance of counsel. See Padilla, 559 U.S. at 359-75.
DISMISSED IN PART AND DENIED IN PART.
1 Although he states the issue regarding his eligibility for a waiver under INA § 212(c),
8 U.S.C. § 1182(c), in his petition for review, Trevino has not raised or briefed any issue
relating to his eligibility for a Section 212(c) waiver in his brief. By failing to brief this issue,
Trevino has waived or abandoned it. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004)
(issues not addressed in the petition for review and brief are waived).
4