15-671 

Carranza v. Sessions 

BIA 

A094 095 153 

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 

8th 4 day of May, two thousand seventeen. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES, 

8 BARRINGTON D. PARKER, 

9 GERARD E. LYNCH, 

10 Circuit Judges. 

11 _____________________________________ 

12 

13 CORNELIO CARRANZA, 

14 Petitioner, 

15 

16 v. 15-671 

17 NAC 

18 JEFFERSON B. SESSIONS III, UNITED 

19 STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Perham Makabi, Kew Gardens, NY. 

24 

25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

26 Assistant Attorney General; Shelley 

27 R. Goad, Assistant Director; Kristen 

28 Giuffreda Chapman, Trial Attorney, 

29 Office of Immigration Litigation, 

30 United States Department of Justice, 

31 Washington, DC. 
2 

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 DENIED. 

5 Petitioner Cornelio Carranza, a native and citizen of El 

6 Salvador, seeks review of a February 3, 2015, decision of the 

7 BIA denying his motion to reopen. In re Cornelio Carranza, No. 

8 A094 095 153 (B.I.A. Feb. 3, 2015). We assume the parties’ 

9 familiarity with the underlying facts and procedural history 

10 in this case. 

11 We find no abuse of discretion in the BIA’s denial of 

12 reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 

13 (2d Cir. 2008) (reviewing denial of reopening for abuse of 

14 discretion). It is undisputed that Carranza’s motion to reopen 

15 was untimely filed because the agency’s order of removal became 

16 final in 2010 and Carranza did not file his motion to reopen 

17 until 2014, well beyond the 90-day deadline. See 8 U.S.C. 

18 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

19 The BIA did not err in declining to equitably toll the 

20 period for Carranza to file his motion based on his claim that 

21 his former attorneys were ineffective for failing to reregister 

22 him for temporary protected status (“TPS”). Even assuming that 
3 

1 prior counsel was ineffective, Carranza had to demonstrate “due 

2 diligence” in pursuing his claim during “both the period of time 

3 before the ineffective assistance of counsel was or should have 

4 been discovered and the period from that point until the motion 

5 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d 

6 Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 

7 2006). 

8 Carranza failed to demonstrate due diligence in pursuing 

9 his ineffective assistance claim. Carranza submitted evidence 

10 that, after this Court denied his petition for review of his 

11 removal order in July 2011, he applied for TPS in December 2011 

12 and hired a new attorney to submit additional evidence in 

13 support of that application in February 2013 after receiving 

14 a notice that the U.S. Citizenship and Immigration Service 

15 (“USCIS”) intended to deny TPS reregistration. He further 

16 claimed that, after being detained for removal in September 

17 2014, he hired another attorney, who informed him that he could 

18 raise an ineffective assistance claim and moved to reopen on 

19 his behalf. 

20 Carranza argues that the BIA erred in assuming that he 

21 should have discovered the ineffective assistance of his former 

22 attorneys when the Court denied his petition in July 2011. This 
4 

1 argument lacks merit for two reasons. First, Carranza 

2 reapplied for TPS in December 2011, five months after this 

3 Court’s denial of his petition, thereby indicating that he was 

4 aware of the basis for his claim that his former attorneys should 

5 have reregistered for TPS at that time rather than in September 

6 2014 as he suggests. Second, the BIA alternatively found that, 

7 even if he was not aware of the claim immediately after this 

8 Court’s July 2011 decision, he met with a new attorney regarding 

9 USCIS’s intent to deny him TPS reregistration in February 2013, 

10 yet he did not take any action to pursue reopening for more than 

11 one year after that. On this record, the BIA did not err in 

12 concluding that Carranza had, or should have, discovered the 

13 basis for his ineffective assistance of counsel claim at some 

14 point during the more than one year that passed between this 

15 Court’s July 2011 decision denying his petition for review of 

16 his final order of removal and his February 2013 meeting with 

17 a new attorney regarding his TPS application. See Rashid, 533 

18 F.3d at 132-33. 

19 Carranza further argues that, even if he should have 

20 discovered his former counsel’s ineffective assistance 

21 earlier, he acted diligently after the Court’s July 2011 

22 decision given that his application to reregister for TPS was 
5 

1 pending with USCIS between December 2011 and the filing of his 

2 motion to reopen in September 2014. That application with 

3 USCIS does not establish that he diligently pursued reopening 

4 of his removal proceedings based on ineffective assistance. 

5 And given that the statutory time period for timely filing a 

6 motion to reopen is 90 days from the date of the final order 

7 of removal, 8 U.S.C. § 1229a(c)(7)(C)(i), the BIA did not err 

8 in determining that Carranza’s unexplained delay of more than 

9 one year—from when he spoke to a new attorney in February 2013 

10 and the filing of his motion in September 2014—showed a lack 

11 of due diligence. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 

12 (2d Cir. 2007). The lack of diligence finding was dispositive 

13 of Carranza’s motion insofar as he sought reopening or equitable 

14 tolling based on ineffective assistance. See Rashid, 533 F.3d 

15 at 131. 

16 Carranza does not challenge the BIA’s alternative bases for 

17 denying his motion—his failure to establish either his prima 

18 facie eligibility for the underlying relief sought so as to 

19 warrant sua sponte reopening or changed country conditions 

20 excusing his untimely filing. Accordingly, we do not reach 

21 those rulings. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 

22 541 n.1, 545 n.7 (2d Cir. 2005). 
6 

1 For the foregoing reasons, the petition for review is 

2 DENIED. Carranza’s request for oral argument is DENIED in 

3 accordance with Federal Rule of Appellate Procedure 34(a)(2), 

4 and Second Circuit Local Rule 34.1(b). 

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk