[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14702

Non-Argument Calendar

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Agency No. A089-370-301

JUAN GILBERTO CONTRERAS-MARTINEZ, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

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(November 28, 2016)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

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Juan Gilberto Contreras-Martinez seeks review of the Board of Immigration 

Appeals’ (“BIA”) denial of a motion to reopen based on ineffective assistance of 

counsel. After review, we deny Contreras’s petition for review.1

The BIA did not abuse its discretion by denying Contreras’s motion to 

reopen because Contreras’s motion was untimely. A motion to reopen must be 

filed within 90 days of the date of the final administrative removal order. 

See Immigration and Nationality Act (“INA”) § 240(c)(7)(C)(i), 8 U.S.C. 

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The 90-day deadline for filing 

motions to reopen is not jurisdictional, and thus may be subject to equitable tolling. 

See Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1359-65 (11th Cir. 2013) 

(en banc). Contreras did not file his motion to reopen until June 23, 2015, almost 

two years after the BIA’s August 2, 2013 final decision. Thus, Contreras’s motion 

to reopen was untimely unless he could satisfy the requirements for equitable 

tolling. 

To establish equitable tolling, the movant must show “(1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood 

in his way.” Id. at 1363 n.5 (quotation marks omitted). The facts underlying an 

ineffective assistance claim may serve as a basis for both equitable tolling and the 

 

1

We review the denial of a motion to reopen for an abuse of discretion. Zhang v. U.S. 

Att’y. Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). This review is limited to determining 

whether the BIA exercised its discretion in an arbitrary or capricious manner. Id. 

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merits of a motion to reopen. Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 

(11th Cir. 2013).

Contreras alleged that his prior counsel provided ineffective assistance by 

filing an asylum application in 2008 to place him in removal proceedings, then 

withdrawing the asylum application and conceding removability so that Contreras 

could seek cancellation of removal. According to Contreras, his prior counsel 

knew or should have known that Contreras was not statutorily eligible for this 

relief because Contreras had not been physically present in the United States for 

ten years. Contreras noted that in February 2007, he had an approved visa petition 

through his U.S. citizen wife and that on March 11, 2014, his prior counsel was 

disbarred from practicing before the BIA or the immigration courts for making 

false statements or offering false evidence in other immigration cases. 

Contreras, however, did not provide any evidence of his efforts to pursue his 

ineffective assistance claim against his prior counsel beyond filing a complaint 

with the Florida Bar on May 19, 2015, almost two years after the BIA dismissed 

his appeal of the denial of cancellation of removal on August 2, 2013, and more 

than one year after the BIA disbarred his prior counsel. Contreras also did not 

state when he obtained his current counsel or why it took him so long to file the bar 

complaint or his motion to reopen. In short, Contreras did not identify any 

extraordinary circumstance that caused him to wait almost two years after the 

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BIA’s final decision, and over a year after prior counsel was disbarred, to file the 

motion to reopen. 

On appeal, the only reason Contreras provides is that he lacked the advice of 

an immigration expert. Contreras’s belated explanation is insufficient as it does 

not explain why Contreras did not seek immigration counsel earlier or why his 

current counsel could not have filed the motion to reopen earlier. 

Without providing evidence of due diligence, Contreras’s motion was not entitled 

to equitable tolling, and the BIA did not abuse its discretion by denying the 

motion. See Avila–Santoyo, 713 F.3d at 1363 n.5, 1359–65. 

Even assuming arguendo that Contreras established due diligence, he failed 

to show he was prejudiced by his prior counsel’s performance. See Dakane v. U.S. 

Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004) (stating that a motion to reopen 

must show that counsel’s ineffective assistance prejudiced the alien’s removal 

proceedings). The record establishes that even absent his prior attorney’s error, the 

outcome of Contreras’s removal proceedings would have been the same. See id.

(stating that prejudice is shown when there is a reasonable probability that the 

outcome of the removal proceedings would have been different). It is undisputed 

that Contreras could not satisfy the continuous physical presence requirement for 

cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1); 

§ 245(i)(1)(B)(i), 8 U.S.C. § 1255(i)(1)(B)(i).

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Contreras argues that his prior counsel should not have placed him in 

removal proceedings to begin with because Contreras had an approved I-130 visa 

petition obtained through his wife, who is a U.S. citizen. But, to be prima facie 

eligible for adjustment of status to a lawful permanent resident, Contreras’s wife 

had to file the visa petition on or before April 30, 2001. See INA § 245(i)(1)(B)(i), 

8 U.S.C. § 1255(i)(1)(B)(i). Contreras and his wife were not even married until 

December 7, 2003, and the visa petition was not received until October 5, 2004. 

Thus, Contreras was not prima facie eligible for adjustment of status either.2

In sum, the BIA was within its discretion in denying Contreras’s motion to 

reopen because Contreras’s motion was untimely, and Contreras failed to show due 

diligence in pursuing his ineffective assistance claim or prejudice resulting from 

his prior counsel’s ineffective assistance. 

PETITION DENIED.

 

2

For the first time, Contreras contends that his prior counsel should have sought 

administrative closure of his removal case based on prosecutorial discretion. We lack 

jurisdiction to review this issue, which Contreras did not exhaust in his motion to reopen before 

the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). In 

any event, Contreras has not shown a reasonable probability that such discretion would have 

been exercised in his favor here.

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