Summary
The Fifth Circuit denied a petition for review of the BIA's denial of a motion to reopen removal proceedings, holding that the petitioner failed to strictly comply with the procedural requirements of *Matter of Lozada* for an ineffective-assistance-of-counsel claim and failed to show prejudice because the omitted evidence was cumulative and the proposed particular social group of "informants" was not cognizable. The court also found no equitable tolling of the 90-day filing deadline due to lack of diligence and no extraordinary circumstances, and dismissed for lack of jurisdiction the challenge to the IJ's discretionary refusal to reopen *sua sponte*. Key topics include ineffective assistance of counsel, *Lozada* compliance, prejudice, cumulative evidence, particular social group, equitable tolling, and *sua sponte* reopening.
Holdings
- Deras failed to comply with Lozada's procedural requirements because she did not provide counsel's response to her allegations and inaccurately stated counsel had not responded.
- Deras failed to show prejudice because the unoffered evidence (testimony and police reports) would have been cumulative and the proposed PSG of 'informants' is not cognizable.
- Equitable tolling is not warranted because Deras did not show diligent pursuit of her rights or extraordinary circumstances beyond her control.
- The court lacks jurisdiction because the IJ has complete discretion and there is no standard by which to judge the ruling.
Questions Presented
- Whether the IJ erred in denying the motion to reopen based on ineffective assistance of counsel due to failure to comply with Lozada and lack of prejudice.
- Whether equitable tolling of the 90-day deadline for moving to reopen is warranted.
- Whether the court has jurisdiction to review the IJ's decision not to reopen sua sponte.
Disposition
DISMISSED IN PART; DENIED IN PART
Cases Cited (11)
- Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988)(followed)
- Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000)(followed)
- Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016)(followed)
- Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006)(followed)
- Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004)(followed)
- Hernandez-Ortez v. Holder, 741 F.3d 644, 647–48 (5th Cir. 2014)(followed)
- Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018)(followed)
- Skinner v. Quarterman, 528 F.3d 336, 345 n.11 (5th Cir. 2008)(followed)
- Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786–87 (5th Cir. 2016)(followed)
- United States v. Petty, 530 F.3d 361, 366 (5th Cir. 2008)(followed)
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