     15-2778
     Diaz-Tineo v. Sessions
                                                                                       BIA
                                                                               A013 730 956

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   26th day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   NICANOR DIAZ-TINEO,
14            Petitioner,
15
16                      v.                                           15-2778
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Lilin M. Ciccarone, CMA Law Group,
24                                       PLLC, Long Island City, N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John W.
28                                       Blakeley, Assistant Director; Kate
29                                       D. Balaban, Trial Attorney, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, D.C.
1          UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    GRANTED in part and DISMISSED in part.

5          Petitioner Nicanor Diaz-Tineo, a native and citizen of the

6    Dominican Republic, seeks review of an August 5, 2015, decision

 7   of the BIA denying his motion to reopen deportation proceedings.

8    In re Nicanor Diaz-Tineo, No. A013 730 956 (B.I.A. Aug. 5, 2015).

9    We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11         Our jurisdiction is constrained in two ways.      First, we

12   have jurisdiction to consider only constitutional claims and

13   questions of law in a petition for review of an order denying

14   a statutory motion to reopen filed by an alien, such as

15   Diaz-Tineo, whose order of deportation was based on a conviction

16   for   a   controlled   substance    offense.      See    8 U.S.C.

17   § 1252(a)(2)(C), (D); Durant v. U.S. INS, 393 F.3d 113, 115 (2d

18   Cir. 2005).   Second, our review of the denial of a regulatory

19   (i.e., sua sponte) motion to reopen is extremely limited.     See

20   Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Ali v.

21   Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
                                     2
1    Statutory Motion to Reopen

2        There are no constitutional claims or questions of law

3    arising    from   the   BIA’s    determination    that   Diaz-Tineo’s

4    statutory motion to reopen was untimely and that he failed to

5    satisfy one of the exceptions to the applicable time limit.          See

6    8 U.S.C.   § 1229a(c)(7)(C)        (listing    exceptions);   8 C.F.R.

7    § 1003.2(c)(3) (same).          Here, the BIA considered whether

8    equitable tolling or the equitable remedy of nunc pro tunc

9    relief    were    warranted   to    overcome    the   untimeliness    of

10   Diaz-Tineo’s motion.

11       The BIA did not err as a matter of law in determining that

12   equitable tolling was not warranted because Diaz-Tineo did not

13   demonstrate that extraordinary circumstances prevented him

14   from timely filing his motion.          See Walker v. Jastremski, 430

15   F.3d 560, 564 (2d Cir. 2005); see also Valverde v. Stinson, 224

16   F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’ requires the

17   petitioner to demonstrate a causal relationship between the

18   extraordinary circumstances on which the claim for equitable

19   tolling rests and the lateness of a filing.”).           Accordingly,

20   the petition for review is dismissed to this extent.


                                         3
1        We conclude, however, that the BIA erred as a matter of law

2    by failing to provide any justification for its determination

3    that nunc pro tunc relief was unwarranted.                  See Xiao Ji Chen

4    v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)

5    (providing    that   a    question           of   law    “arise[s]      where   a

6    discretionary     decision      .    .   .    was   made   without      rational

7    justification or based on a legally erroneous standard.”).

8    “The equitable remedy of nunc pro tunc (literally ‘now for

9    then’) relief has a long and distinguished history in the field

10   of immigration law.”      Edwards v. INS, 393 F.3d 299, 308 (2d Cir.

11   2004).    Such relief may be awarded in the interests of justice

12   to “mitigat[e] potentially harsh results of the immigration

13   laws” and “should be available whenever necessary to put the

14   victim of agency error in the position he or she would have

15   occupied but for the error.”                  Id. at 308, 310 (internal

16   brackets, ellipses, and quotation marks omitted).                 “Therefore,

17   where    agency   error   has       prevented       an   alien   from    seeking

18   deportation relief, justice . . . requires, that the agency

19   rectify that error—and that it do so, if necessary, by means

20   of nunc pro tunc relief.”            Id. at 311 (internal brackets and

21   quotation marks omitted).
                                              4
1         Here, as in Edwards, Diaz-Tineo was deprived of the

2    opportunity to apply for a waiver of deportation under former

3    Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C.

4    § 1182(c), based on an interpretation of the INA that was later

5    deemed legally erroneous.   First, in 2004, the agency amended

6    its regulations “to provide that the 1990 amendment barring the

7    availability of section 212(c) relief for aggravated felons who

8    ha[d] served a term of at least five years for one or more

9    aggravated felonies w[ould] not . . . bar the eligibility of

10   aliens with respect to any aggravated felony conviction

11   pursuant to a plea agreement that was made prior to November

12   29, 1990, the date that amendment was enacted.”     Executive

13   Office for Immigration Review; Section 212(c) Relief for Aliens

14   With Certain Criminal Convictions, 69 Fed. Reg. 57826-01,

15   57830-31 (Apr. 1, 1997) (codified at 8 C.F.R.

16   § 1212.3(f)(4)(ii)).   Second, in Matter of Abdelghany, 26 I.

17   & N. Dec. 254 (B.I.A. 2014), the BIA held that deportable lawful

18   permanent residents convicted after trial should be treated “no

19   differently for purposes of [§] 212(c) eligibility than . . .

20   [those] convicted by means of plea agreements.”   26 I. & N. Dec.

21   at 268.   Accordingly, based on the 2004 regulatory amendment
                                    5
1    and post-Abdelghany interpretation of the INA, Diaz-Tineo,

2    whose 1980 convictions were obtained after trial, is

3    statutorily eligible for § 212(c) relief.     See 8 C.F.R.

4    § 1212.3(f)(4)(ii); see also Abdelghany, 26 I. & N. Dec. at 268.

5    The BIA’s failure to provide any basis for finding nunc pro tunc

6    relief unavailable to excuse the filing deadline for

 7   Diaz-Tineo’s motion to reopen requires remand.      See Edwards,

 8   393 F.3d at 309-12.

 9   Regulatory Motion to Reopen

10        Diaz-Tineo also challenges the BIA’s decision not to

11   exercise its discretionary authority to reopen sua sponte.    The

12   90-day time limitation applicable to a statutory motion to

13   reopen does not apply to a regulatory motion to reopen.       See

14   8 C.F.R. § 1003.2(a).     Although we may remand if the BIA

15   “misperceived the legal background and thought, incorrectly,

16   that a reopening would necessarily fail,” Mahmood v. Holder,

17   570 F.3d 466, 469 (2d Cir. 2009), there was no such misperception

18   here: the BIA did not conclude that an application for § 212(c)

19   relief   would   necessarily   fail.    Accordingly,    we   lack

20   jurisdiction over Diaz-Tineo’s petition to this extent.       See

21   Ali, 448 F.3d at 518; Mahmood, 570 F.3d at 469.
                                     6
1         For the foregoing reasons, the petition for review is

2    GRANTED in part and DISMISSED in part.         As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED, and any pending motion for

5    a stay of removal in this petition is DISMISSED as moot.        Any

6    pending request for oral argument in this petition is DENIED

7    in   accordance   with   Federal   Rule   of   Appellate   Procedure

8    34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                                  FOR THE COURT:
10                                  Catherine O’Hagan Wolfe, Clerk




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