Felix Diaz v. Jefferson Sessions, III

Case: 17-60230 Document: 00514532720 Page: 1 Date Filed: 06/28/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60230 FILED June 28, 2018 Lyle W. Cayce Clerk FELIX GERARDO DIAZ, Also Known as Felix Gerardo Macanche Diaz, Also Known as Feliz G. Diaz, Also Known as Feliz Diaz, Also Known as Gelix Gerardo Diaz Macanche, Petitioner, versus JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Before SMITH, WIENER, and WILLETT, Circuit Judges. JERRY E. SMITH, Circuit Judge: Felix Diaz petitions for review of the denial of his motion to reopen his application for cancellation of removal. Because Diaz has effectively conceded he was convicted of felony possession of a controlled substance, we have juris- diction over only constitutional claims or questions of law. Compare 8 U.S.C. § 1252(a)(C) with id. § 1252(a)(D). The Board of Immigration Appeals (“BIA”) Case: 17-60230 Document: 00514532720 Page: 2 Date Filed: 06/28/2018 No. 17-60230 and immigration judge (“IJ”) denied the motion to reopen as untimely and not subject to equitable tolling because Diaz had not shown ineffective assistance of counsel (“IAC”). Insofar as Diaz raises a constitutional claim of IAC, we have jurisdiction to resolve both that question of law and any factual questions necessary to its resolution. But because Diaz has not shown IAC, we deny the petition. I. Diaz is a Nicaraguan citizen who obtained status as a lawful permanent resident (“LPR”) in December 1999. In 2001, he was convicted of driving while intoxicated. In 2007, he was convicted of felony possession of a controlled sub- stance, namely cocaine. And in 2010, he was convicted of public intoxication. Then, in 2015, he arrived at a Houston airport and applied for admission to the United States as a returning LPR. Shortly thereafter, the Department of Homeland Security (“DHS”) served him with a Notice to Appear (“NTA”), charging inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(II) (conviction relat- ing to a controlled substance). At the initial hearing, in July 2015, Diaz appeared with counsel. He admitted several factual allegations in the NTA but denied having committed the disqualifying drug offense. Nevertheless, the IJ found the charge to be true based on records of conviction and, because Diaz then pleaded true to the charge, the IJ found him inadmissible. Nicaragua was designated the country of removal. In October 2015, Diaz, through counsel, filed an application for cancel- lation of removal. A merits hearing was held in November 2015, at which Diaz admitted that he and his wife had lied on their tax returns to obtain refunds and to qualify for Medicaid and food stamps. After that testimony, Diaz, through counsel, withdrew his application for cancellation of removal and 2 Case: 17-60230 Document: 00514532720 Page: 3 Date Filed: 06/28/2018 No. 17-60230 requested that the IJ permit voluntary departure. The IJ granted that request, and Diaz waived appeal. In September 2016, Diaz moved to reopen, asserting that ...

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