Case: 20-60534 Document: 00515763375 Page: 1 Date Filed: 03/02/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 2, 2021 No. 20-60534 Summary Calendar Lyle W. Cayce Clerk Raquel Garcia-Tinoco, Petitioner, versus Robert M. Wilkinson, Acting U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A088 839 027 Before Jolly, Elrod, and Graves, Circuit Judges. Per Curiam:* Raquel Garcia-Tinoco, a native and citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) denying her second motion to reopen her immigration proceedings, based on a determination that it was untimely and number-barred. She contends that * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-60534 Document: 00515763375 Page: 2 Date Filed: 03/02/2021 No. 20-60534 she has established ineffective assistance by the attorney who represented her in her removal proceedings, who failed to file an application for immigration relief and failed to update her about deadlines and hearings in her case. In addition, Garcia-Tinoco maintains that the attorney who filed her first motion to reopen rendered ineffective assistance by failing to comply with Matter of Lozada, 19 I. & N. Dec. 637, 637-40 (BIA 1988), when alleging that the prior attorney had rendered ineffective assistance. She asserts that she suffered prejudice because she was deprived of the opportunity to file for relief from removal and because the immigration courts denied her prior motion to reopen. Although Garcia-Tinoco acknowledges that her second motion to reopen did not comply with the rules for filing such motions, she argues that the BIA abused its discretion by not granting equitable tolling. Finally, she asserts that the BIA erred in not granting her motion to reopen pursuant to its sua sponte authority. We review the denial of a motion to reopen under a highly deferential abuse-of-discretion standard. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). Although a single motion to reopen must generally be filed within 90 days of the entry of a final order of removal, this deadline is subject to equitable tolling. Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016). An alien is entitled to equitable tolling if she shows “that [s]he has been pursuing [her] rights diligently, and . . . that an extraordinary circumstance beyond [her] control prevented [her] from complying with the applicable deadline.” Id. (internal quotation marks and citation omitted). Ineffective assistance of counsel may constitute an extraordinary circumstance justifying equitable tolling of the deadline for seeking statutory reopening. Diaz v. Sessions, 894 F.3d 222, 227 (5th Cir. 2018). Although Garcia-Tinoco argues that her original attorney performed deficiently by failing to file an application for relief from removal and failing to advise her of deadlines and hearings, she has failed to demonstrate that the 2 Case: 20-60534 …
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