Case: 18-60441 Document: 00514938107 Page: 1 Date Filed: 05/01/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-60441 May 1, 2019 Summary Calendar Lyle W. Cayce Clerk SAN JUANA ALVAREZ-DE SAUCEDA, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A091 374 218 Before SMITH, WIENER, and WILLETT, Circuit Judges. PER CURIAM: * San Juana Alvarez-De Sauceda is a native and citizen of Mexico who was removed to that country in 2008. In 2016 she filed an untimely motion to reopen her removal proceedings, arguing that her former attorney erroneously advised that she did not qualify for any relief from removal. The immigration judge (IJ) determined that Alvarez-De Sauceda had not established the due diligence necessary to warrant equitable tolling. The Board of Immigration * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-60441 Document: 00514938107 Page: 2 Date Filed: 05/01/2019 No. 18-60441 Appeals (BIA) affirmed that decision and dismissed the appeal. Alvarez-De Sauceda now petitions for review of the BIA’s decision. We generally have jurisdiction to review a decision refusing to reopen a final order of removal. Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). In this case, however, because Alvarez-De Sauceda was convicted of possessing a controlled substance, this court’s review is limited to considering constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C); Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018). Equitable tolling of 8 U.S.C. § 1229a(c)(7)’s 90-day deadline is warranted only if the litigant establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016) (internal quotation marks and citation omitted). The due-diligence analysis is a factual one; we have jurisdiction only to consider a claim that the BIA applied an erroneous legal standard in performing that analysis. See Diaz, 894 F.3d at 226; Penalva v. Sessions, 884 F.3d 521, 525 (5th Cir. 2018). When the motion to reopen is based on a claim of ineffective assistance of counsel, a constitutional claim involving a mix of factual and legal questions, we have jurisdiction to review a decision that the extraordinary-circumstance prong was not met. See Diaz, 894 F.3d at 226. Only the due-diligence prong is at issue here. We review the BIA’s decision but may review the IJ’s decision where, as here, that decision had some impact on the BIA’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). First, Alvarez-De Sauceda maintains that the BIA erred in failing to give due consideration to the reality of many departed aliens as stated in Lugo- Resendez, 831 F.3d at 344-45. However, “the doctrine of ...
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