           Case: 15-14702    Date Filed: 11/28/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14702
                        Non-Argument Calendar
                      ________________________

                       Agency No. A089-370-301

JUAN GILBERTO CONTRERAS-MARTINEZ,

                                                                       Petitioner,


                                   versus


U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (November 28, 2016)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Juan Gilberto Contreras-Martinez seeks review of the Board of Immigration

Appeals’ (“BIA”) denial of a motion to reopen based on ineffective assistance of

counsel. After review, we deny Contreras’s petition for review. 1

       The BIA did not abuse its discretion by denying Contreras’s motion to

reopen because Contreras’s motion was untimely. A motion to reopen must be

filed within 90 days of the date of the final administrative removal order.

See Immigration and Nationality Act (“INA”) § 240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The 90-day deadline for filing

motions to reopen is not jurisdictional, and thus may be subject to equitable tolling.

See Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1359-65 (11th Cir. 2013)

(en banc). Contreras did not file his motion to reopen until June 23, 2015, almost

two years after the BIA’s August 2, 2013 final decision. Thus, Contreras’s motion

to reopen was untimely unless he could satisfy the requirements for equitable

tolling.

       To establish equitable tolling, the movant must show “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way.” Id. at 1363 n.5 (quotation marks omitted). The facts underlying an

ineffective assistance claim may serve as a basis for both equitable tolling and the


       1
        We review the denial of a motion to reopen for an abuse of discretion. Zhang v. U.S.
Att’y. Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). This review is limited to determining
whether the BIA exercised its discretion in an arbitrary or capricious manner. Id.
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merits of a motion to reopen. Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851

(11th Cir. 2013).

      Contreras alleged that his prior counsel provided ineffective assistance by

filing an asylum application in 2008 to place him in removal proceedings, then

withdrawing the asylum application and conceding removability so that Contreras

could seek cancellation of removal. According to Contreras, his prior counsel

knew or should have known that Contreras was not statutorily eligible for this

relief because Contreras had not been physically present in the United States for

ten years. Contreras noted that in February 2007, he had an approved visa petition

through his U.S. citizen wife and that on March 11, 2014, his prior counsel was

disbarred from practicing before the BIA or the immigration courts for making

false statements or offering false evidence in other immigration cases.

      Contreras, however, did not provide any evidence of his efforts to pursue his

ineffective assistance claim against his prior counsel beyond filing a complaint

with the Florida Bar on May 19, 2015, almost two years after the BIA dismissed

his appeal of the denial of cancellation of removal on August 2, 2013, and more

than one year after the BIA disbarred his prior counsel. Contreras also did not

state when he obtained his current counsel or why it took him so long to file the bar

complaint or his motion to reopen. In short, Contreras did not identify any

extraordinary circumstance that caused him to wait almost two years after the


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BIA’s final decision, and over a year after prior counsel was disbarred, to file the

motion to reopen.

      On appeal, the only reason Contreras provides is that he lacked the advice of

an immigration expert. Contreras’s belated explanation is insufficient as it does

not explain why Contreras did not seek immigration counsel earlier or why his

current counsel could not have filed the motion to reopen earlier.

Without providing evidence of due diligence, Contreras’s motion was not entitled

to equitable tolling, and the BIA did not abuse its discretion by denying the

motion. See Avila–Santoyo, 713 F.3d at 1363 n.5, 1359–65.

      Even assuming arguendo that Contreras established due diligence, he failed

to show he was prejudiced by his prior counsel’s performance. See Dakane v. U.S.

Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004) (stating that a motion to reopen

must show that counsel’s ineffective assistance prejudiced the alien’s removal

proceedings). The record establishes that even absent his prior attorney’s error, the

outcome of Contreras’s removal proceedings would have been the same. See id.

(stating that prejudice is shown when there is a reasonable probability that the

outcome of the removal proceedings would have been different). It is undisputed

that Contreras could not satisfy the continuous physical presence requirement for

cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1);

§ 245(i)(1)(B)(i), 8 U.S.C. § 1255(i)(1)(B)(i).


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       Contreras argues that his prior counsel should not have placed him in

removal proceedings to begin with because Contreras had an approved I-130 visa

petition obtained through his wife, who is a U.S. citizen. But, to be prima facie

eligible for adjustment of status to a lawful permanent resident, Contreras’s wife

had to file the visa petition on or before April 30, 2001. See INA § 245(i)(1)(B)(i),

8 U.S.C. § 1255(i)(1)(B)(i). Contreras and his wife were not even married until

December 7, 2003, and the visa petition was not received until October 5, 2004.

Thus, Contreras was not prima facie eligible for adjustment of status either. 2

       In sum, the BIA was within its discretion in denying Contreras’s motion to

reopen because Contreras’s motion was untimely, and Contreras failed to show due

diligence in pursuing his ineffective assistance claim or prejudice resulting from

his prior counsel’s ineffective assistance.

       PETITION DENIED.




       2
         For the first time, Contreras contends that his prior counsel should have sought
administrative closure of his removal case based on prosecutorial discretion. We lack
jurisdiction to review this issue, which Contreras did not exhaust in his motion to reopen before
the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). In
any event, Contreras has not shown a reasonable probability that such discretion would have
been exercised in his favor here.
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