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Diaz v. Sessions

Facts

Felix Diaz, a Nicaraguan citizen, became a lawful permanent resident in December 1999. He faced removal proceedings after being served with a Notice to Appear in 2015 due to a conviction for felony possession of a controlled substance. In 2015, he applied for cancellation of removal but later withdrew the application after admitting to tax fraud. In 2016, he moved to reopen the case, claiming ineffective assistance of counsel, but the BIA denied the motion as untimely.

Felix Diaz, a Nicaraguan citizen, became a lawful permanent resident in December 1999. He faced removal proceedings after being served with a Notice to Appear in 2015 due to a conviction for felony possession of a controlled substance.

Issue

Did the BIA err in denying Diaz's motion to reopen his application for cancellation of removal based on ineffective assistance of counsel?

Did the BIA err in denying Diaz's motion to reopen his application for cancellation of removal based on ineffective assistance of counsel?

Rule

A motion to reopen must be filed within ninety days of a final order of removal, but this deadline may be subject to equitable tolling if the litigant can show that extraordinary circumstances prevented timely filing.

A motion to reopen must be filed within ninety days of a final order of removal. That deadline, however, may be subject to equitable tolling.

Analysis

The court found that Diaz did not establish ineffective assistance of counsel because he failed to show that his counsel's performance was deficient or that he was prejudiced by it. The BIA's findings indicated that Diaz had committed additional crimes and had consulted with his counsel before withdrawing his application, which undermined his claims of ineffective assistance.

The court found that Diaz did not establish ineffective assistance of counsel because he failed to show that his counsel's performance was deficient or that he was prejudiced by it.

Conclusion

The court denied Diaz's petition for review, affirming the BIA's decision to deny the motion to reopen as untimely and not subject to equitable tolling.

The court denied Diaz's petition for review, affirming the BIA's decision to deny the motion to reopen as untimely and not subject to equitable tolling.

Who won?

The government prevailed in the case because the court found that Diaz did not demonstrate ineffective assistance of counsel and that the BIA's findings were not in error.

The government prevailed in the case because the court found that Diaz did not demonstrate ineffective assistance of counsel and that the BIA's findings were not in error.

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