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.**  **At a stated term of the United States Court of Appeals for** 1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **8 th** **day of May, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **BARRINGTON D. PARKER,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **CORNELIO CARRANZA,** 13 Petitioner**,** 14 15 **v. 15-671** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Perham Makabi, Kew Gardens, NY. 23 24 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 25 Assistant Attorney General; Shelley 26 R. Goad, Assistant Director; Kristen 27 Giuffreda Chapman, Trial Attorney, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Cornelio Carranza, a native and citizen of El 5 Salvador, seeks review of a February 3, 2015, decision of the 6 BIA denying his motion to reopen. In re Cornelio Carranza, No. 7 A094 095 153 (B.I.A. Feb. 3, 2015). We assume the parties’ 8 familiarity with the underlying facts and procedural history 9 in this case. 10 We find no abuse of discretion in the BIA’s denial of 11 reopening. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 12 (2d Cir. 2008) (reviewing denial of reopening for abuse of 13 discretion). It is undisputed that Carranza’s motion to reopen 14 was untimely filed because the agency’s order of removal became 15 final in 2010 and Carranza did not file his motion to reopen 16 until 2014, well beyond the 90-day deadline. See8 U.S.C. 17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 18 The BIA did not err in declining to equitably toll the 19 period for Carranza to file his motion based on his claim that 20 his former attorneys were ineffective for failing to reregister 21 him for temporary protected status (“TPS”). Even assuming that 223 prior counsel was ineffective, Carranza had to demonstrate “due 1 diligence” in pursuing his claim during “both the period of time 2 before the ineffective assistance of counsel was or should have 3 been discovered and the period from that point until the motion 4 to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d 5 Cir. 2008); see also Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 6 2006). 7 Carranza failed to demonstrate due diligence in pursuing 8 his ineffective assistance claim. Carranza submitted evidence 9 that, after this Court denied his petition for review of his 10 removal order in July 2011, he applied for TPS in December 2011 11 and hired a new attorney to submit additional evidence in 12 support of that application in February 2013 after receiving 13 a notice that the U.S. Citizenship and Immigration Service 14 (“USCIS”) intended to deny TPS reregistration. He further 15 claimed that, after being detained for removal in September 16 2014, he hired another attorney, who informed him that he could 17 raise an ineffective assistance claim and moved to reopen on 18 his behalf. 19 Carranza argues that the BIA erred in assuming that he 20 should have discovered the ineffective assistance of his former 21 attorneys when the Court denied his petition in July 2011. This 224 argument lacks merit for two reasons. First, Carranza 1 reapplied for TPS in December 2011, five months after this 2 Court’s denial of his petition, thereby indicating that he was 3

aware of the basis for his claim that his former attorneys should 4 have reregistered for TPS at that time rather than in September 5 2014 as he suggests. Second, the BIA alternatively found that, 6 even if he was not aware of the claim immediately after this 7 Court’s July 2011 decision, he met with a new attorney regarding 8 USCIS’s intent to deny him TPS reregistration in February 2013, 9 yet he did not take any action to pursue reopening for more than 10 one year after that. On this record, the BIA did not err in 11 concluding that Carranza had, or should have, discovered the 12 basis for his ineffective assistance of counsel claim at some 13 point during the more than one year that passed between this 14 Court’s July 2011 decision denying his petition for review of 15 his final order of removal and his February 2013 meeting with 16 a new attorney regarding his TPS application. See Rashid , 533 17 F.3d at 132-33. 18 Carranza further argues that, even if he should have 19 discovered his former counsel’s ineffective assistance 20 earlier, he acted diligently after the Court’s July 2011 21 decision given that his application to reregister for TPS was 225 pending with USCIS between December 2011 and the filing of his 1 motion to reopen in September 2014. That application with 2 USCIS does not establish that he diligently pursued reopening 3 of his removal proceedings based onineffective assistance. 4 And given that the statutory time period for timely filing a 5 motion to reopen is 90 days from the date of the final order 6 of removal, 8 U.S.C. § 1229a(c)(7)(C)(i), the BIA did not err 7 in determining that Carranza’s unexplained delay of more than 8 one year—from when he spoke to a new attorney in February 2013 9 and the filing of his motion in September 2014—showed a lack 10 of due diligence. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 11 (2d Cir. 2007). The lack of diligence finding was dispositive 12 of Carranza’s motion insofar as he sought reopening or equitable 13 tolling based on ineffective assistance. See Rashid , 533 F.3d 14 at 131. 15
Carranza does not challenge the BIA’s alternative bases for 16 denying his motion—his failure to establish either his prima 17 facie eligibility for the underlying relief sought so as to 18 warrant sua sponte reopening or changed country conditions 19 excusing his untimely filing. Accordingly, we do not reach 20 those rulings. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 21 541 n.1, 545 n.7 (2d Cir. 2005). 226 For the foregoing reasons, the petition for review is 1 DENIED. Carranza’s request for oral argument is DENIED in 2 accordance with Federal Rule of Appellate Procedure 34(a)(2), 3 and Second Circuit Local Rule 34.1(b). 4
FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6