Case: 19-60017     Document: 00515538256         Page: 1     Date Filed: 08/24/2020




         United States Court of Appeals
              for the Fifth Circuit                             United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                 August 24, 2020
                                No. 19-60017
                                                                  Lyle W. Cayce
                                                                       Clerk
 Jorge Alfredo Flores-Moreno,

                                                                     Petitioner,

                                    versus

 William P. Barr, United States Attorney General,

                                                                   Respondent.


                    Petition for Review of an Order of the
                        Board of Immigration Appeals
                            BIA No. A077 241 507


 Before Smith, Willett, and Duncan, Circuit Judges.
 Stuart Kyle Duncan, Circuit Judge:
        Jorge Alfredo Flores-Moreno, a native and citizen of Mexico, petitions
 for review of the denial of his motion to reopen removal proceedings by the
 Board of Immigration Appeals (BIA), which held that Flores-Moreno’s
 seven-years-late motion was untimely and not entitled to equitable tolling.
 Seeing no abuse of discretion, we deny the petition.
                                      I.
        Flores-Moreno entered the United States as a lawful permanent
 resident in 2001. In 2010, after he was convicted of possessing between 50
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                                 No. 19-60017


 and 2,000 pounds of marijuana, the Department of Homeland Security
 (DHS) issued Flores-Moreno a Notice to Appear charging him as removable
 under 8 U.S.C. § 1227(a)(2)(B)(i) (authorizing removal of aliens convicted
 of controlled substance violations, including simple possession of more than
 30 grams of marijuana). An immigration judge (IJ) subsequently found
 Flores-Moreno removable, but granted his application for cancellation of
 removal as a matter of discretion. DHS appealed the IJ’s order and the BIA
 reversed. Without disturbing the IJ’s factual findings, the BIA held that
 Flores-Moreno was not entitled to cancellation of removal because positive
 equities did not outweigh his “serious and recent criminal conviction.” The
 BIA’s removal order was entered on February 8, 2011, and Flores-Moreno
 was physically removed on February 11, 2011.
       More than seven years later, on May 1, 2018, Flores-Moreno filed a
 motion to reopen removal proceedings. While acknowledging his motion was
 untimely, Flores-Moreno argued that the 90-day deadline should be
 equitably tolled because he exercised due diligence in the face of
 extraordinary circumstances. In support of this argument, Flores-Moreno
 explained that he illegally reentered the United States on February 15, 2011,
 less than a week after his removal, and proceeded to his attorney’s office,
 where he spoke with a legal assistant. According to Flores-Moreno, the
 assistant informed him that his case could not be appealed because he had
 already been removed, and that all the firm could do was “file a
 recommendation” which would take three years. After waiting three years
 and realizing nothing was happening, Flores-Moreno spoke with a second
 attorney, who also told him nothing could be done. Several years after that,
 Flores-Moreno sought counsel from a third attorney who, on January 31,
 2018, advised Flores-Moreno about the possibility of filing a motion to
 reopen premised on ineffective assistance of counsel rendered by his original
 attorney. After sending his original attorney an unanswered confrontation




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                                   No. 19-60017


 letter and filing a grievance with the State Bar of Texas, Flores-Moreno filed
 his motion to reopen.
        The BIA denied Flores-Moreno’s motion as untimely, holding that
 Flores-Moreno was not entitled to equitable tolling because he failed to show
 that he acted with reasonable diligence after talking with his second attorney.
 The BIA also explained that Flores-Moreno failed to demonstrate prejudice
 arising from his original counsel’s actions or inactions because Flores-
 Moreno did not establish that a timely motion to reopen or petition for review
 would likely have changed the outcome of the proceedings.
        Flores-Moreno timely petitioned for review. We have jurisdiction to
 consider the petition under 8 U.S.C. § 1252(a).
                                        II.
        “In reviewing the denial of a motion to reopen, this court applies a
 highly deferential abuse-of-discretion standard, regardless of the basis of the
 alien’s request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
 Cir. 2009) (citing Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000)).
 “Accordingly, this court must affirm the BIA’s decision as long as it is not
 capricious, without foundation in the evidence, or otherwise so irrational that
 it is arbitrary rather than the result of any perceptible rational approach.” Id.
 (citation omitted). In considering the BIA’s decision, we review legal
 conclusions de novo and factual findings for substantial evidence. Id.
                                       III.
                                        A.
        As an initial matter, the Government argues that we lack jurisdiction
 to review the BIA’s determination that Flores-Moreno failed to satisfy the
 requirements for equitable tolling. The Government maintains that whether
 an alien demonstrates due diligence for the purpose of equitable tolling is a




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                                   No. 19-60017


 factual question, whereas this court’s jurisdiction to review removal orders
 premised on controlled substance violations extends only to “constitutional
 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Although we
 previously shared the Government’s view, see, e.g., Penalva v. Sessions, 884
 F.3d 521, 525–26 (5th Cir. 2018), the Supreme Court recently circumscribed
 this argument in Guerrero-Lasprilla v. Barr [Guerrero I], 140 S. Ct. 1062
 (2020).
        In Guerrero I, the Supreme Court vacated our determination that we
 lacked jurisdiction to consider Pedro Pablo Guerrero-Lasprilla’s petition for
 review. 140 S. Ct. at 1073. Although we had held that whether an alien acted
 diligently for equitable tolling purposes was a factual question insulated from
 review by § 1252(a)(2)(D), the Supreme Court explained that “the statutory
 phrase ‘questions of law’ includes the application of a legal standard to
 undisputed or established facts.” Id. at 1068. On remand, after ordering
 supplemental briefing, we concluded that “[w]hether Guerrero exercised
 due diligence, for equitable-tolling purposes, is . . . a ‘question of law’ over
 which we have jurisdiction.” Guerrero-Lasprilla v. Barr [Guerrero II], No. 17-
 60333, 2020 WL 4381813, at *2 (5th Cir. July 29, 2020) (per curiam)
 (unpublished).
        The same is true here. Because there is no dispute as to the underlying
 facts, but rather only as to the application of a legal standard to those facts,
 the due diligence inquiry in this case is properly construed as a question of
 law over which we have jurisdiction pursuant to § 1252(a)(2)(D).
                                       B.
        Turning to the merits of the petition, we first consider Flores-
 Moreno’s argument that the BIA abused its discretion by improperly
 applying the equitable tolling standard. We hold that the BIA did not
 misapply the standard.




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                                   No. 19-60017


        Generally, a motion to reopen removal proceedings 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). We have held, however, 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 337, 344 (5th Cir. 2016). Equitable tolling is
 warranted only if petitioner 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. (citation omitted). “The first element
 requires the litigant to establish that he pursued his rights with reasonable
 diligence, not maximum feasible diligence” and “[t]he second element
 requires the litigant to establish that an extraordinary circumstance beyond
 his control prevented him from complying with the applicable deadline.” Id.
 (internal quotation marks and citations omitted). “Courts must consider the
 individual facts and circumstances of each case in determining whether
 equitable tolling is appropriate.” Id. at 344–45 (citation omitted).
        Flores-Moreno contends that the BIA applied this standard too
 harshly, requiring him to demonstrate “maximum feasible diligence.” Not
 so. The BIA cited “the lack of meaningful evidence regarding the steps
 [Flores-Moreno] took to preserve his rights from 2014 to 2017” to conclude
 that Flores-Moreno failed to demonstrate due diligence. Flores-Moreno
 offers no argument or authority supporting his contention that he pursued
 his rights with reasonable diligence by waiting three years to contact his
 current counsel after discovering his original counsel had done nothing with
 his case and then being told by a different attorney that nothing could be
 done. In light of these facts and circumstances, we cannot say that the BIA
 applied too harsh a standard by requiring Flores-Moreno to provide
 meaningful evidence of at least some effort made during that prolonged




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                                         No. 19-60017


 period. 1 Because the BIA did not abuse its discretion in holding that Flores-
 Moreno failed to pursue his rights diligently, we need not address Flores-
 Moreno’s objection to the BIA’s alternative holding that he failed to show
 prejudice necessary to establish ineffective assistance of counsel. 2
         Finally, we consider Flores-Moreno’s contention that the BIA abused
 its discretion by ignoring his gross miscarriage of justice claim. This
 argument is without merit. Although we have recognized a gross miscarriage
 of justice exception where a statutory bar limits review of an underlying
 removal order, as in the context of habeas corpus petitions and reinstatement
 proceedings, we have declined to extend this exception to overcome an
 untimely motion to reopen. See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306
 (5th Cir. 2017). Even if such an exception did apply, it would not be satisfied
 here because Flores-Moreno fails to demonstrate that the underlying removal


         1
            Furthermore, even if Flores-Moreno was entitled to equitable tolling for the entire
 period from when he spoke to his original attorney’s legal assistant (sometime after he
 reentered the United States on February 15, 2011) to when his current attorney advised him
 to file a motion premised on ineffective assistance of counsel (January 31, 2018)—a period
 of no more than 2,543 days—his motion would still be seven days late. Flores-Moreno filed
 his motion to reopen on May 1, 2018, exactly 2,640 days after the BIA entered its removal
 order on February 8, 2011.
                                   2,640 – 2,543 = 97 days
 (Flores-Moreno has never argued that he is entitled to equitable tolling for the 7 or more
 days between when the BIA entered its removal order and when he spoke to the legal
 assistant at his original attorney’s law firm.)
         2
            Separately, Flores-Moreno argues that he was deprived of his right to effective
 assistance of counsel during removal proceedings under the Due Process Clause of the
 Fifth Amendment. We have assumed, but never decided, that such a right exists. See Mai,
 473 F.3d at 165; Singh v. Sessions, 751 F. App’x 464, 467 (5th Cir. 2018) (per curiam). Even
 if such a right does exist, Flores-Moreno only asserts ineffective assistance of counsel after
 the conclusion of his removal proceedings. More to the point, we have explained that there
 is no constitutional right to effective assistance of counsel in pursuing purely discretionary
 relief such as cancellation of removal. See Gutierrez-Morales v. Homan, 461 F.3d 605, 609
 (5th Cir. 2006).




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 order was “clearly unlawful under the law that existed at the time.” Id. For
 these reasons, the BIA did not abuse its discretion in declining to analyze
 Flores-Moreno’s gross miscarriage of justice claim.
                                    ***
       Accordingly, the petition for review is DENIED.




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