Medina-Herrera v. Gonzales , 162 F. App'x 329 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-61152
Summary Calendar
_______________________
BORIS O. MEDINA-HERRERA,
Petitioner,
versus
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A29 331 428
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Boris O. Medina-Herrera brings this petition for review,
challenging the Board of Immigration Appeals’s (“BIA’s”) dismissal
of his appeal from an immigration judge’s February 23, 2004, order
denying reopening and reconsideration. Because we conclude that
the BIA did not engage in impermissible fact finding, and that
Medina-Herrera failed to exercise due diligence in preserving his
rights, his petition is DENIED.
BACKGROUND
*
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opinion should not be published and is not precedent except under the limited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.
Medina-Herrera is a native and citizen of Guatemala who
entered the United States as a nonimmigrant with permission to
remain until April 5, 1990. He did not depart as required, and an
immigration judge ultimately ordered him deported following a
hearing conducted in absentia on October 30, 1990.
On September 11, 1998, Medina-Herrera filed a motion to
reopen pursuant to § 203 of the Nicaraguan Adjustment and Central
American Relief Act (“NACARA”). On December 17, 1999, an immigra-
tion judge denied Medina-Herrera’s motion.
On February 5, 2004, Medina-Herrera again moved to have
his case reopened and reconsidered. He argued that he had received
ineffective assistance of counsel in preparing his application for
NACARA relief, and that as a result, the statute of limitations to
file a motion to reopen should have been equitably tolled. The
immigration judge held that ineffective assistance of counsel did
not provide a basis for equitable tolling, and denied Medina-
Herrera’s motion as untimely on February 23, 2004. Medina-Herrera
appealed to the BIA.
The BIA then dismissed Medina-Herrera’s appeal on
November 18, 2004, holding that Medina-Herrera had failed to
establish that he was entitled to equitable tolling. The BIA
concluded that even if his counsel rendered ineffective assistance,
Medina-Herrera had not exercised due diligence in seeking
reconsideration of the immigration judge’s decision. Medina-
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Herrera filed a timely petition for review, and this court has
jurisdiction.
DISCUSSION
On a petition for review of a BIA decision, we review the
BIA’s rulings of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444 (5th Cir. 2001). We review the BIA’s findings of fact for
substantial evidence. Tesfamichael v. Gonzales, 411 F.3d 169, 175
(5th Cir. 2005).
Medina-Herrera argues that the BIA violated its own
regulations in determining that he failed to exercise due diligence
in seeking reconsideration. On an appeal from the decision of an
immigration judge, the BIA may review “questions of law,
discretion, and judgment and all other issues in appeals from
decisions of immigration judges de novo.” 8 C.F.R.
§ 1003.1(d)(3)(ii). However, 8 C.F.R. § 1003.1(d)(3)(iv) states
that the BIA “will not engage in factfinding in the course of
deciding appeals.” Medina-Herrera claims that the BIA engaged in
improper factfinding in making its determination that he did not
exercise due diligence over his claim. Respondent claims that such
a determination was a conclusion of law.
As a general matter, courts have treated the determina-
tion whether a party has exercised due diligence for the purposes
of equitable tolling as a finding of fact. See Migis v. Pearle
Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998)(discussing
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reasonable diligence in the context of a Title VII claim).
However, in certain limited circumstances, other circuit courts
have recognized that the issue of whether a party exercised due
diligence may be a conclusion of law. See, e.g., Borges v.
Gonzales, 402 F.3d 398, 407 (3d Cir. 2005) (due diligence found as
a matter of law where facts were undisputed and record permitted
only one conclusion); Former Employees of Sonoco Prods. Co. v.
Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004)(same); Iavorski v. INS,
232 F.2d 124, 134 (2d Cir. 2000) (holding in first instance that an
alien seeking to reopen his case failed to exercise due diligence
and was not entitled to equitable tolling “as a matter of law”
where facts were undisputed). We agree with the reasoning of the
aforementioned cases and conclude that where the facts on the
record are undisputed, and the result is inarguable, the BIA may
determine as a matter of law that a party failed to exercise due
diligence.
Even accepting Medina-Herrera’s claims of ineffective
counsel as true, there is no disputing that he took more than four
years to bring a motion to reopen his case. In a formal bar
complaint he brought against his former counsel, Medina-Herrera
acknowledged that it “seemed odd” that he had not received
communication from his attorney in years. Still, Medina-Herrera
failed to take any action on his case. These undisputed facts lead
only to the conclusion that Medina-Herrera failed to exercise due
diligence; the BIA made a permissible legal determination within
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the scope of its authority in dismissing Medina-Herrera’s appeal.
We agree with the Board’s holding, and Medina-Herrera’s petition
for review is therefore DENIED.
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