             Case: 16-10231    Date Filed: 12/22/2016   Page: 1 of 8


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 16-10231
                           Non-Argument Calendar
                         ________________________

                          Agency No. A205-358-855

LEONARDO ESPARZA-DIAZ,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

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

                              (December 22, 2016)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Leonardo Esparza-Diaz, proceeding through counsel, seeks review of the

Board of Immigration Appeals (“BIA”) order denying his second motion to reopen

removal proceedings as both time- and number-barred, 8 C.F.R. § 1003.2(a). On
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appeal, Esparza-Diaz argues that: (1) the ineffective assistance rendered by his

three prior attorneys warrants equitable tolling of the time- and number-bar on

motions to reopen; and (2) the BIA relied on an incorrect legal premise in refusing

to use its authority to sua sponte reopen his removal proceedings. After careful

review, we deny the petition in part, and dismiss it in part.

       We review the BIA’s denial of a motion to reopen for abuse of discretion,

namely, whether the BIA exercised its administrative discretion in an arbitrary or

capricious manner. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226

(11th Cir. 2008). “The moving party bears a heavy burden” because “motions to

reopen are disfavored, especially in removal proceedings.” Zhang v. U.S. Att’y

Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

       The BIA shall not grant a motion to reopen unless:

       [I]t appears to the Board that evidence sought to be offered is material and
       was not available and could not have been discovered or presented at the
       former hearing; nor shall any motion to reopen for the purpose of affording
       the alien an opportunity to apply for any form of discretionary relief be
       granted if it appears that the alien’s right to apply for such relief was fully
       explained to him or her and an opportunity to apply therefore was afforded
       at the former hearing, unless the relief is sought on the basis of
       circumstances that have arisen subsequent to the hearing. Subject to . . .
       other requirements and restrictions . . . , a motion to reopen proceedings for
       consideration or further consideration of an application for relief under
       section 212(c) of the Act (8 U.S.C. 1182(c)) 1 may be granted if the alien

1
 The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) repealed former
8 U.S.C. § 1182(c), which governed suspension of deportation, and replaced it with 8 U.S.C. §
1229b, which governs cancellation of removal. Mohammed v. Ashcroft, 261 F.3d 1244, 1248
n.3 (11th Cir. 2001).
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      demonstrates that he or she was statutorily eligible for such relief prior to the
      entry of the administratively final order of deportation.

8 C.F.R. § 1003.2(c)(1). We have held that, “[a]t a minimum, there are at least

three independent grounds upon which the Board may deny a motion to reopen: (1)

failure to establish a prima facie case; (2) failure to introduce evidence that was

material and previously unavailable; and (3) a determination that despite the alien’s

statutory eligibility for relief, he or she is not entitled to a favorable exercise of

discretion.” Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).

      An alien may file one motion to reopen within 90 days of the date on which

a final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7). This 90-day

time limit is a non-jurisdictional claim-processing rule, and is thus subject to

equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1365 (11th

Cir. 2013) (en banc). And although we have not specifically answered whether the

rule allowing just one motion is also subject to equitable tolling, we’ve suggested

that it is. See Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 850 (11th Cir. 2013).

In Ruiz-Turcios, we noted that “equitable tolling is a threshold showing that must

be made before the merits of the claim or claims underlying a motion to reopen can

be considered.” Id. at 851. “[E]quitable tolling generally requires a litigant to

show (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstances stood in his way.” Id. (quotation omitted).



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      The facts underlying a claim of ineffective assistance of counsel may serve

as both a basis for equitable tolling and the merits of a motion to reopen, though

the standards for each are distinct. Id. While an alien in removal proceedings does

not have a Sixth Amendment right to counsel, he does have a “constitutional right

under the Fifth Amendment Due Process Clause right to a fundamentally fair

hearing to effective assistance of counsel where counsel has been obtained.”

Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005) (quotation and

emphasis omitted). To establish ineffective assistance of counsel in a deportation

hearing, an alien must show that his “counsel’s performance was deficient to the

point that it impinged upon the fundamental fairness of the hearing such that the

alien was unable to reasonably present his [] case.” Id. at 1274 (quotation omitted)

(concerning a timely first motion to reopen). Additionally, an alien claiming

ineffective assistance of counsel must show he was prejudiced by counsel’s

deficient performance, meaning there is a reasonable probability that but for

counsel’s error, the outcome of the proceedings would have been different. Id.

      In Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999), the alien

argued that a time-barred motion to reopen was the fault of counsel. We held that

the alien could not establish ineffective assistance of counsel if the deficient

representation merely prevents the alien from being eligible for suspension of

deportation, because that kind of relief was discretionary. Id. at 1146-48. We


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reasoned that deficient representation does not deprive an alien of due process,

because the chances of receiving such relief “are too speculative, and too far

beyond the capability of judicial review, to conclude that the alien has actually

suffered prejudice from being ineligible….” Id. at 1148. We have since applied

our holding in Mejia Rodriguez to conclude that an alien cannot raise a due process

challenge based on the denial of cancellation of removal. See Mohammed, 261

F.3d at 1248 n.3, 1250-51.

      The Attorney General has discretion to cancel the removal of an alien who

demonstrates, in relevant part, that he has not been convicted of certain offenses,

including certain firearm offenses, as set forth in 8 U.S.C. § 1227(a)(2)(C). 8

U.S.C. § 1229b(b)(1). As for the disqualifying firearm offenses, an alien is not

eligible for cancellation of removal if he has been convicted under any law of

possessing or carrying a firearm or destructive device, as defined in 18 U.S.C. §

921(a). 8 U.S.C. § 1229b(b)(1); 8 U.S.C. § 1227(a)(2)(C). Section 921(a) defines

“firearm” as “(A) any weapon (including a starter gun) which will or is designed to

or may readily be converted to expel a projectile by the action of an explosive; (B)

the frame or receiver of any such weapon; (C) any firearm muffler or firearm

silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3).

      Here, the BIA did not abuse its discretion in denying Esparza-Diaz’s second

motion to reopen as both time- and number-barred. Esparza-Diaz claims that his


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previous attorneys were ineffective for failing to proffer evidence to show that his

prior Florida conviction for open carrying of a weapon was not a firearm offense

that would statutorily disqualify him from cancellation of removal. However, this

argument is premised on the notion that his attorneys’ failing resulted in the denial

of his application for cancellation -- a discretionary form of relief. Under Mejia

Rodriguez, 178 F.3d at 1146-48, Esparza-Diaz cannot establish that he was

prejudiced by his counsels’ alleged ineffective assistance. As we explained there,

any deficient representation by Esparza-Diaz’s counsel could not have deprived

him of due process since the chances of him receiving such relief “are too

speculative, and too far beyond the capability of judicial review, to conclude that

the alien has actually suffered prejudice from being ineligible.”        Id. at 1148.

Accordingly, the BIA did not abuse its discretion in determining that Esparza-Diaz

did not establish that “exceptional circumstances” in his case warranted equitable

tolling. Thus, we deny Esparza-Diaz’s petition as to this claim.

      As for Esparza-Diaz’s challenge to the BIA’s refusal to exercise its sua

sponte authority to reopen his removal proceedings, we lack jurisdiction over this

issue. We’ve previously recognized that we lack jurisdiction to hear an appeal of

the BIA’s denial of a motion to reopen based on its sua sponte authority. Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). In Mata v. Lynch, 135

S. Ct. 2150 (2015), the Supreme Court reversed and remanded a case when the


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Fifth Circuit determined that it lacked jurisdiction to review the BIA’s denial of a

motion to reopen where the BIA had both denied the motion as untimely and

refused to exercise its sua sponte authority to reopen. Id. at 2154-56. However,

the Supreme Court did not determine that the Fifth Circuit erred in determining

that it lacked jurisdiction to review the BIA’s refusal to sua sponte reopen the

removal proceedings. Id. at 1255. Instead, it determined that, even assuming

arguendo that the Fifth Circuit lacked jurisdiction to review the BIA’s refusal to

sua sponte reopen the proceedings, that refusal did not strip the Fifth Circuit of its

jurisdiction to address the BIA’s denial of the statutory motion to reopen as

untimely. Id. We have since held that Mata did not alter the holding in Lenis, and

that we lack jurisdiction to review the BIA’s denial to exercise its authority to sua

sponte reopen the removal proceedings. Butka v. U.S. Att’y Gen., 827 F.3d 1278,

1285-86 (11th Cir. 2016).

      We are therefore bound under our precedent to hold that we lack jurisdiction

to review the BIA’s determination that no “extraordinary circumstances” existed to

warrant the exercise of its authority to sua sponte reopen removal proceedings.

See Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292-93. As we’ve explained,

Mata did not provide that appellate courts have the jurisdiction to review the BIA’s

refusal to reopen removal proceedings sua sponte. See Butka, 827 F.3d at 1285-

86. Therefore, we dismiss Esparza-Diaz’s petition as to this claim.


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PETITION DENIED IN PART, DISMISSED IN PART.




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