Valentin Cotoc-Perez v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-1769 ______________ VALENTIN COTOC-PEREZ, Petitioner v. THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of an Order of The Board of Immigration Appeals (Agency No. A070-894-189) Immigration Judge: Charles M. Honeyman ______________ Submitted Pursuant to Third Circuit LAR 34.1(a) October 3, 2017 ______________ Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT, District Judge. * (Opinion Filed: January 23, 2018) ______________ OPINION ** ______________ * The Honorable Gerald J. Pappert, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. ** This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. PAPPERT, District Judge. Valentin Cotoc-Perez, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. The Immigration Judge concluded that the motion was untimely and failed to satisfy certain exceptions to the time limitations governing such filings. The BIA agreed and dismissed Cotoc-Perez’s appeal of the Immigration Judge’s decision. Cotoc-Perez argues that the BIA abused its discretion by failing to analyze his claims under the Convention against Torture (“CAT”). The BIA, having agreed with the Immigration Judge that the motion was untimely, was procedurally barred from reviewing the underlying merits of the CAT claim. We accordingly deny the petition. I Cotoc-Perez entered the United States in November of 1992. On May 14, 1993, he submitted a request for asylum to the Immigration and Naturalization Service. After an interview with an asylum officer on September 13, 2005, his claim was referred to the Immigration Court. The Department of Homeland Security subsequently filed a notice to appear, charging Cotoc-Perez as removable for being present in the United States without having been admitted or paroled, or arriving at a time or place other than as designated by the Attorney General. Cotoc-Perez conceded the removability charge and at a hearing on September 27, 2006, his attorney withdrew his asylum application. On October 10, 2007, the Immigration Judge granted Cotoc-Perez voluntary departure and ordered him to leave the United States on or before February 7, 2008. Cotoc-Perez, however, did not do so 2 and on October 9, 2015 filed through new counsel his motion to reopen his removal proceedings. II An alien may file one motion to reopen proceedings within 90 days of the final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There are exceptions to this time-bar, two of which are relevant to this case. A petitioner may seek to equitably toll the 90-day deadline if he alleges ineffective assistance of counsel and exercises due diligence in pursuing that claim. Mahmood v. Gonzales, 427 F.3d 248, 251 (3d Cir. 2005). A petitioner may also seek an exception to the time-bar where there was a material change in country conditions between the time he appeared before the Immigration Judge ...

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