     Case: 16-60286    Document: 00514366717      Page: 1   Date Filed: 02/28/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT                                     United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                           February 28, 2018
                                  No. 16-60286
                                                                             Lyle W. Cayce
                                                                                  Clerk
MARIA NATALIA PENALVA, also known as Maria Natalia Penalva Cari,

             Petitioner,

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

             Respondent.




                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Petitioner Maria Natalia Penalva filed a motion to reopen her removal
proceedings in immigration court after the statutory deadline.                  The
immigration judge denied her motion, and the Board of Immigration Appeals
affirmed. Because whether equitable tolling applies to Penalva’s motion to
reopen is a question of fact and the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C)
applies, we DISMISS Penalva’s petition for lack of jurisdiction.
                                        I.
      Maria Natalia Penalva, a native and citizen of Argentina, was admitted
to the United States as a lawful permanent resident.           She pleaded nolo
contendere to a charge of theft and to a charge of possession of cocaine. Later,
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she was convicted of grand theft and of access device fraud in violation of 18
U.S.C. § 1029. She was sentenced to two years in prison and three years of
supervised release.
      In 2009, the government initiated removal proceedings against Penalva.
The Notice to Appear alleged that she was removable under the following
statutory provisions: (1) 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien who, after
admission, had been convicted of two crimes involving moral turpitude; (2) 8
U.S.C. § 1227(a)(2)(B)(i) as an alien who, after admission, had been convicted
of a controlled substance violation; and (3) 8 U.S.C. § 1227(a)(2)(A)(iii) as an
alien who, after admission, had been convicted of an aggravated felony.
      At the hearing before the Immigration Judge (IJ), Penalva denied all
charges of removability.     After reviewing Penalva’s criminal records, the
immigration judge issued an order finding that Penalva was removable as
charged. Penalva did not appeal the IJ’s decision, and she was removed from
the United States in 2010.
      In 2015, Penalva filed a motion to reopen her removal proceedings. She
argued   that   her   motion   to    reopen   should    be   considered   timely—
notwithstanding the fact that it was filed more than five years after her order
of removal became final—under the doctrine of equitable tolling. She argued
that her former attorney was ineffective for failing to object or otherwise argue
that her conviction for access device fraud was not an aggravated felony.
Penalva argued that because the immigration court considered her access
device fraud crime an aggravated felony, she was ineligible for cancellation of
removal. Without an aggravated felony, she would be prima facie eligible for
cancellation of removal, and so she attached an application for such relief to
her motion to reopen.
      The IJ denied Penalva’s motion to reopen for several reasons. First, the
IJ found that the motion to reopen was untimely. The IJ rejected Penalva’s
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argument that the 90-day limitations period for filing a motion to reopen was
subject to equitable tolling. Moreover, the IJ found that even if equitable
tolling applied, Penalva would not be entitled to relief because her prior
aggravated felony made her ineligible for cancellation of removal. The IJ also
rejected Penalva’s argument that her prior conviction for access device fraud
was not an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i).
      The IJ went on to explain that even if Penalva had been eligible for
cancellation of removal and her attorney had been ineffective for failing to
challenge her prior aggravated felony, her motion to reopen would still be
denied because Penalva had failed to comply with the procedural requirements
set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
      On appeal, the Board of Immigration Appeals (BIA) agreed with the IJ’s
denial of Penalva’s motion to reopen and dismissed the appeal. The BIA
concluded that even if equitable tolling applied to the 90-day statutory
deadline, Penalva had failed to demonstrate that she diligently sought to
reopen the removal proceedings to warrant equitable tolling. The BIA also
agreed with the IJ that Penalva had failed to comply with the requirements of
Matter of Lozada. Even if she had complied with these requirements, the BIA
determined, Penalva’s claim of ineffective assistance of counsel would fail
because she was ineligible for cancellation of removal, given her prior criminal
convictions, and thus, she could not show prejudice.
                                      II.
      We review “the denial of a motion to reopen ‘under a highly deferential
abuse-of-discretion standard.’” Barrios-Cantarero v. Holder, 772 F.3d 1019,
1021 (5th Cir. 2014) (quoting Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005)). “The Board abuses its discretion when it issues a decision that is
capricious, irrational, utterly without foundation in the evidence, based on


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legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Id.
                                        III.
      “We must begin by determining whether we have jurisdiction to review
the BIA’s decision. . . .” Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013)
(quoting Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001)). We review the
question of jurisdiction de novo. Id.
      “The [Immigration and Nationality Act] affords this Court jurisdiction to
review orders of removal.” Silva-Trevino v. Holder, 742 F.3d 197, 199 (5th Cir.
2014). However, “no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed”
certain criminal offenses. See 8 U.S.C. § 1252(a)(2)(C). The jurisdictional bar
does not extend to “constitutional claims or questions of law raised upon a
petition for review.” 8 U.S.C. § 1252(a)(2)(D).
      The first question is whether Penalva was “removable by reason of
having committed a criminal offense covered in section 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of [the Immigration and Nationality Act] or
any offense covered by section 1227(a)(2)(A)(ii) of [the Immigration and
Nationality Act] for which both predicate offenses are, without regard to their
date of commission, otherwise covered by section 1227(a)(2)(A)(i) of [the
Immigration and Nationality Act].” 8 U.S.C. § 1252(a)(2)(C).
      For the purposes of her petition, Penalva concedes that she was subject
to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(ii) based on
her two convictions involving moral turpitude not arising out of the same
scheme of criminal conduct and under 8 U.S.C. § 1227(a)(2)(B)(i) based on her




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conviction related to a controlled substance. 1        Therefore, 8 § 1252(a)(2)(C)
applies to Penalva as a criminal alien.
      However, Penalva asserts that her petition is still reviewable because it
raises questions of law. Section 1252(a)(2)(D) provides that:
      Nothing in subparagraph (B) or (C), or in any other provision of this
      chapter (other than this section) which limits or eliminates judicial
      review, shall be construed as precluding review of constitutional claims
      or questions of law raised upon a petition for review filed with an
      appropriate court of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D). As such, § 1252(a)(2)(D) operates as a savings clause
for “constitutional claims or questions of law” raised by criminal aliens.
      Penalva asserts that we have jurisdiction here to review her petition
because the questions of: (1) whether she is entitled to equitable tolling; (2)
whether she exercised due diligence in pursuing her claim; and (3) whether she
complied with the procedural requirements required for ineffective assistance
claims are all questions of law.
      As Penalva acknowledges, she filed her motion to reopen five years after
her order of removal became final. Generally, a motion to reopen must be filed
within 90 days of the date of entry of a final administrative order of removal.
8 U.S.C. § 1229a(c)(7)(C)(i).       Therefore, Penalva’s motion to reopen was
statutorily untimely, but she urges that she is entitled to equitable tolling of
the 90-day deadline.
      We recently held that “the deadline for filing a motion to reopen under
§ 1229a(c)(7) is subject to equitable tolling.” Lugo-Resendez v. Lynch, 831 F.3d




      1   Penalva contends that she was not removable based on an aggravated felony
conviction because her access device fraud conviction should not be classified as an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Because she is removable based on
other convictions listed in 8 U.S.C. § 1252(a)(2)(C), this argument does not change our
analysis.
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337, 344 (5th Cir. 2016). 2 A petitioner is only entitled to equitable tolling if he
establishes: “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.”
Id. (quoting Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750,
755 (2016)).
       Agreeing with the IJ, the BIA here determined that Penalva “failed to
exercise due diligence in pursuing her claim of ineffective assistance of counsel
by delaying over 5 years in raising the issue.” Penalva argues that the question
of whether she exercised due diligence—as to warrant equitable tolling—is a
question of law and not a factual determination. We disagree.
       First, Lugo-Resendez strongly suggests that whether equitable tolling
applies to a petitioner’s motion to reopen is a question of fact.                  In Lugo-
Resendez, we declined “to determine whether the deadline should be equitably
tolled in the instant case.” Id. We explained that “the doctrine of ‘equitable
tolling does not lend itself to bright-line rules.’” Id. (quoting Fisher v. Johnson,
174 F.3d 710, 713 (5th Cir. 1999)). Rather, “‘[c]ourts must consider the
individual facts and circumstances of each case in determining whether
equitable tolling is appropriate.’” Id. at 344–45 (quoting Alexander v. Cockrell,
294 F.3d 626, 629 (5th Cir. 2002)). Accordingly, we remanded to the BIA to
apply the appropriate equitable tolling standard because we concluded that
“the record before the court is not sufficiently developed for us to engage in the
fact-intensive determination of whether equitable tolling is appropriate.” Id.
at 344. (quoting Rivera v. Quarterman, 505 F.3d 349, 354 (5th Cir. 2007)).




       2 Lugo-Resendez was published while Penalva’s case was pending. The IJ and BIA
determined that Penalva’s motion was not subject to equitable tolling under then-current
Fifth Circuit precedent. Both still addressed the rest of the issues raised in Penalva’s motion
assuming arguendo that equitable tolling was available in Penalva’s case.
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      In another recent case, we acknowledged that “whether equitable tolling
applies to [a petitioner’s] motion to reopen is a question of fact.” Dominguez v.
Sessions, 708 F. App’x 808, 812 (5th Cir. 2017). In Dominguez, the petitioner
was removable because he was convicted of an aggravated felony, so we
determined that we did not have jurisdiction to review whether equitable
tolling applies to his motion to reopen.      Id.    Citing to Lugo-Resendez, we
emphasized that the “inquiry is ‘fact-intensive.’” Id. (quoting Lugo-Resendez,
831 F.3d at 344).
      Moreover, several of our sister circuits have held that a petitioner’s
disagreement with the BIA’s determination that the petitioner failed to
exercise due diligence is barred from appellate review under § 1252(a)(2)(C).
The Fourth Circuit explained its “jurisdiction does not extend to a simple
disagreement with the Board’s ‘factual determination that [the petitioner] had
not exercised due diligence.’” Lawrence v. Lynch, 826 F.3d 198, 203 (4th Cir.
2016) (quoting Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006)). Similarly,
the First Circuit concluded that it has “no jurisdiction to review” a petitioner’s
challenge to a denial of a motion to reopen when a petitioner “simply disagrees”
with the BIA’s decision not to apply equitable tolling. Boakai, 447 F.3d at 4.
      Here, Penalva does not allege that the BIA applied the wrong legal
standard when it determined that Penalva “failed to exercise due diligence in
pursuing her claim of ineffective assistance of counsel by delaying over 5 years
in raising the issue” and did not toll the 90-day deadline.            Instead, she
disagrees with the BIA’s determination that she did not exercise due diligence
and contends that she acted diligently in attempting to reopen her removal
proceedings. Penalva asks us “to engage in the fact-intensive determination of
whether equitable tolling is appropriate.” Lugo-Resendez, 831 F.3d at 344
(quoting Rivera, 505 F.3d at 354).          We conclude that whether Penalva
diligently pursued her rights is a question of fact. See also Migis v. Pearle
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Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998) (explaining in the Title VII
context that a plaintiff has a duty to “mitigate her damages by using
reasonable diligence to obtain substantially equivalent employment” and
whether she has done so “is a question of fact”).
       Because the issue at hand is a question of fact and the jurisdictional bar
of 8 U.S.C. § 1252(a)(2)(C) applies, we lack jurisdiction to consider Penalva’s
petition. 3
                                               IV.
       The petition for review is DISMISSED for lack of jurisdiction.




       3  Even assuming arguendo that we could review Penalva’s petition, Penalva fails to
offer an “‘extraordinary circumstance’ ‘beyond [her] control’” that prevented her from
complying with the statutory deadline, as required by our precedent. Lugo-Resendez, 831
F.3d at 344 (quoting In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006)). As such, this argument
is forfeited, and Penalva’s claim that she is entitled to equitable tolling necessarily fails. See
Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 n. 1 (2017) (“Forfeiture is the
failure to make the timely assertion of a right. . . .”) (quoting United States v. Olano, 507 U.S.
725, 733 (1993)); see also United States v. Scroggins, 599 F.3d 433, 449 (5th Cir. 2010).
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