Nelson Osmin Tejada-Palacios v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11717
Non-Argument Calendar
____________________
NELSON OSMIN TEJADA-PALACIOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A088-928-610
____________________
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2 Opinion of the Court 21-11717
Before L UCK , LAGOA , and B RASHER , Circuit Judges.
PER CURIAM:
Nelson Osmin Tejada-Palacios seeks review of an order by
the Board of Immigration Appeals denying his motion to reopen
his cancellation of removal proceedings. The BIA determined that
his motion was time- and number-barred under 8 U.S.C.
§ 1229a(c)(7). But Tejada-Palacios argues that he was entitled to eq-
uitable tolling of these requirements because he had only recently
realized that he received ineffective assistance of counsel. How-
ever, the record indicates that he could have raised this argument
much earlier. Thus, the BIA did not abuse its discretion in conclud-
ing that he had not pursued his rights diligently and that equitable
tolling was therefore not warranted. We accordingly deny Tejada-
Palacios’s petition for review.
I.
In 2010, an immigration judge denied Tejada-Palacios’s ap-
plications for asylum, withholding of removal, and relief under the
Convention Against Torture, and ordered him removed to his
home country of El Salvador. Proceeding
pro se, Tejada-Palacios
appealed that order, which the BIA affirmed.
Tejada-Palacios then retained the services of an immigration
consultant—who was not an attorney—to prepare a
pro se motion
for reconsideration, which the BIA denied. Over the ensuing years,
the immigration consultant assisted Tejada-Palacios in filing
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21-11717 Opinion of the Court 3
several motions to reopen his cancellation of removal proceedings,
all of which the BIA denied. Tejada-Palacios identified himself as
appearing “pro se” or “pro per” in each of these motions. Yet
Tejada-Palacios alleges that he did not discover that the immigra-
tion consultant was not an attorney until he was taken into custody
by Immigration and Customs Enforcement in January 2019.
The next month, Tejada-Palacios filed the motion to reopen
that is the subject of this appeal. He argued that the consultant ren-
dered ineffective assistance by holding himself out as an attorney
and carelessly filing an unreasonable number of motions, which
constituted an exceptional circumstance warranting reopening of
his proceedings. He also argued that he was entitled to equitable
tolling of the statutory requirements for his motion because he had
only recently discovered that the consultant was not an attorney.
He alternatively argued that the BIA should exercise its
sua sponte
authority to reopen his proceedings.
The BIA denied this motion, concluding that it failed to meet
the time and number requirements in 8 U.S.C. § 1229a(c)(7). It fur-
ther reasoned that Tejada-Palacios was not entitled to equitable
tolling because he had not pursued his rights diligently. It also de-
termined that he was not prejudiced by the consultant’s conduct,
and that he had not shown his eligibility for cancellation of re-
moval. Tejada-Palacios timely appealed, challenging each of the
grounds for the BIA’s decision.
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4 Opinion of the Court 21-11717
II.
“We review the denial of a motion to reopen an immigra-
tion petition for an abuse of discretion. Our review is limited to
determining whether the BIA exercised its discretion in an arbitrary
or capricious manner.”
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009). The BIA abuses its discretion when it misapplies
the law or when it diverges from its own precedents without
providing a reasoned explanation for doing so.
Ferreira v. U.S. Att’y
Gen., 714 F.3d 1240, 1243 (11th Cir. 2013).
III.
As an initial matter, we lack appellate jurisdiction to con-
sider Tejada-Palacios’s challenge to the BIA’s refusal to reopen
sua
sponte. This Court may review a denial of a motion for
sua sponte
reopening only if the petitioner complains of a constitutional defect
in the BIA’s decision.
Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285–
86 (11th Cir. 2016). Here, Tejada-Palacios makes no constitutional
argument, so we cannot review the BIA’s refusal to exercise its
sua
sponte authority.
But Tejada-Palacios also apparently argues that the BIA
should have exercised its statutory authority to reopen his case. An
alien may file only one motion for statutory reopening within 90
days of the entry of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i). Tejada-Palacios filed the motion in this case
years after that deadline had passed, and after filing several similar
motions. But the 90-day requirement is non-jurisdictional and is
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21-11717 Opinion of the Court 5
subject to equitable tolling.
Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357, 1365 (11th Cir. 2013) (en banc). And we have sug-
gested in dicta that the same principle applies to the statute’s one-
motion limitation.
See Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d
847, 850 (11th Cir. 2013). To be entitled to equitable tolling, a liti-
gant must show “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.”
Avila-Santoyo, 713 F.3d at 1363 n.5. Tejada-Palacios argues that he
was entitled to equitable tolling because he discovered that the
consultant was not an attorney shortly before filing his motion to
reopen.
The BIA did not abuse its discretion by concluding that eq-
uitable tolling was not warranted because Tejada-Palacios had not
pursued his rights diligently. As the BIA explained, after Tejada-Pa-
lacios was assisted by the immigration consultant in preparing his
motion for reconsideration, he continued working with that con-
sultant for nearly eight years before claiming that he rendered inef-
fective assistance of counsel. Tejada-Palacios maintains that he dis-
covered that the consultant was not an attorney in January 2019,
and that he was not familiar enough with English to understand
earlier that he had been representing himself. The BIA did not
abuse its discretion in rejecting this argument. Tejada-Palacios
identified himself as “pro se” or “pro per” on multiple filings—in-
cluding some filed before he met the consultant. His earlier use of
those designations supports the conclusion that he was familiar
with their meaning, and that he therefore should have known that
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6 Opinion of the Court 21-11717
he was not represented by an attorney when he filed his
pro se mo-
tion for reconsideration. Because he failed to claim ineffective as-
sistance within a reasonable time afterward, the BIA did not abuse
its discretion in concluding that he had not pursued his rights dili-
gently.
This ground alone foreclosed equitable tolling,
see Avila-
Santoyo, 713 F.3d at 1363 n.5, so we do not address Tejada-Pala-
cios’s arguments that he was prejudiced by the consultant’s con-
duct and that he complied with the procedural requirements for
asserting ineffective assistance of counsel. Nor need we reach his
argument that he made a
prima facie showing of eligibility of can-
cellation for removal. Without recourse to equitable tolling,
Tejada-Palacios’s motion to reopen was correctly rejected as time-
and number-barred under Section 1229a(c)(7).
PETITION DENIED.
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