Maria Penalva v. Jefferson Sessions, III

Case: 16-60286 Document: 00514366717 Page: 1 Date Filed: 02/28/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 28, 2018 No. 16-60286 Lyle W. Cayce Clerk MARIA NATALIA PENALVA, also known as Maria Natalia Penalva Cari, Petitioner, v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Before WIENER, ELROD, and SOUTHWICK, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge: Petitioner Maria Natalia Penalva filed a motion to reopen her removal proceedings in immigration court after the statutory deadline. The immigration judge denied her motion, and the Board of Immigration Appeals affirmed. Because whether equitable tolling applies to Penalva’s motion to reopen is a question of fact and the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies, we DISMISS Penalva’s petition for lack of jurisdiction. I. Maria Natalia Penalva, a native and citizen of Argentina, was admitted to the United States as a lawful permanent resident. She pleaded nolo contendere to a charge of theft and to a charge of possession of cocaine. Later, Case: 16-60286 Document: 00514366717 Page: 2 Date Filed: 02/28/2018 No. 16-60286 she was convicted of grand theft and of access device fraud in violation of 18 U.S.C. § 1029. She was sentenced to two years in prison and three years of supervised release. In 2009, the government initiated removal proceedings against Penalva. The Notice to Appear alleged that she was removable under the following statutory provisions: (1) 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien who, after admission, had been convicted of two crimes involving moral turpitude; (2) 8 U.S.C. § 1227(a)(2)(B)(i) as an alien who, after admission, had been convicted of a controlled substance violation; and (3) 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who, after admission, had been convicted of an aggravated felony. At the hearing before the Immigration Judge (IJ), Penalva denied all charges of removability. After reviewing Penalva’s criminal records, the immigration judge issued an order finding that Penalva was removable as charged. Penalva did not appeal the IJ’s decision, and she was removed from the United States in 2010. In 2015, Penalva filed a motion to reopen her removal proceedings. She argued that her motion to reopen should be considered timely— notwithstanding the fact that it was filed more than five years after her order of removal became final—under the doctrine of equitable tolling. She argued that her former attorney was ineffective for failing to object or otherwise argue that her conviction for access device fraud was not an aggravated felony. Penalva argued that because the immigration court considered her access device fraud crime an aggravated felony, she was ineligible for cancellation of removal. Without an aggravated felony, she would be prima facie eligible for cancellation of removal, and so she attached an application for such relief to her motion to reopen. The IJ denied Penalva’s motion to reopen for several reasons. First, the IJ found that the motion to reopen ...

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