Luis Guillermo Pieschacon Quijano v. U.S. Attorney General

Case: 16-10529 Date Filed: 03/22/2018 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10529 ________________________ Agency No. A087-342-641 LUIS GUILLERMO PIESCHACON QUIJANO, MARIA CECILIA PARRA LOPEZ, GABRIELA AMEZQUITA PARRA, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 22, 2018) Before WILSON and BLACK, Circuit Judges, and SCHLESINGER, * District Judge. * Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. Case: 16-10529 Date Filed: 03/22/2018 Page: 2 of 6 PER CURIAM: The parties are familiar with the facts and extensive procedural history in this case. We will therefore reference facts only as they relate to the issues and arguments on appeal. As an initial matter, Petitioners’ counsel conceded at oral argument that Pieschacon 1 has been represented by competent counsel since 2014.2 Consequently, we need not address Pieschacon’s argument that his Motion to Reconsider should have been construed as a successive motion to reopen.3 Our review is therefore limited to a straightforward determination of whether the Board 1 Petitioner Luis Guillermo Pieschacon Quijano filed the application for relief at issue in this appeal on behalf of himself and (derivatively) his wife and daughter, Petitioners Maria Cecilia Parra Lopez and Gabriela Amezquita Parra. References to the singular “Pieschacon” in this opinion may refer to all Petitioners where appropriate. 2 Oral Argument at 18:45–18:58. 3 Pieschacon argued in his brief that the limitation on successive motions to reopen should be tolled because the counsel who filed his initial Motion to Reopen in 2015 was ineffective. Thus, by conceding he has had competent counsel since 2014, Pieschacon concedes the factual predicate for that argument is invalid. See Crowe v. Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997) (“That concessions and admissions of counsel at oral argument in appellate courts can count against them is doubtlessly true.”). But even if the argument were not conceded, it would fail both because Pieschacon cannot demonstrate “extraordinary circumstances” prevented him from filing a timely motion and because he never presented his new theory of equitable tolling (based on his appellate counsel’s alleged ineffectiveness) to the Board of Immigration Appeals (BIA). See Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013) (“[E]quitable tolling generally requires a litigant to show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (quotation omitted)); see also Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (“A petitioner has not exhausted a claim unless he has both raised the ‘core issue’ before the BIA and also set out any discrete arguments he relies on in support of that claim.” (citations omitted)). 2 Case: 16-10529 Date Filed: 03/22/2018 Page: 3 of 6 of Immigration Appeals (BIA) abused its discretion by denying Pieschacon’s Motion to Reconsider its decision denying his Motion to Reopen. After review, 4 ...

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