Sanchez-Diaz v. Garland

Case: 20-60395 Document: 00516072621 Page: 1 Date Filed: 10/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60395 October 28, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Sonia Noemy Sanchez-Diaz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 819 257
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Sonia Noemy Sanchez-Diaz, a native and citizen of El Salvador, seeks
review of a Board of Immigration Appeals (BIA) opinion dismissing her
appeal from an Immigration Judge (IJ) order denying her motion to reopen.
The petition for review is denied.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-60395 Document: 00516072621 Page: 2 Date Filed: 10/28/2021
No. 20-60395
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000). This court reviews the denial of a motion to reopen
under a highly deferential abuse-of-discretion standard. Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005); see also Hernandez-Castillo v. Sessions, 875
F.3d 199, 203-04 (5th Cir. 2017). This court will affirm the BIA’s decision
unless it is “capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Zhao, 404 F.3d at 303-04 (internal
citation omitted). Questions of law are reviewed de novo. Morales v. Sessions,
860 F.3d 812, 816 (5th Cir. 2017).
Sanchez-Diaz did not timely file her motion to reopen. Equitable
tolling does not apply, as Sanchez-Diaz did not establish that she pursued her
rights with reasonable diligence. See Lugo-Resendez v. Lynch, 831 F.3d 337,
344 (5th Cir. 2016). Even if the motion to reopen were timely filed, it lacks
merit. Sanchez-Diaz did not put forth evidence establishing that that her
former counsel was constitutionally deficient and that she was prejudiced
such that there was a reasonable probability that but for counsel’s
unprofessional errors, the result would have been different. See Diaz v.
Sessions, 894 F.3d 222, 228 (5th Cir. 2018). Sanchez-Diaz’s contention that
the immigration court lacked jurisdiction is foreclosed by this court’s
decision in Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021)
(deciding that a notice to appear which is defective for the purpose of
activating the stop time rule still constitutes a charging document vesting
jurisdiction with the immigration court). Accordingly, the petition for review
is denied.
The petition for review is DENIED.
2