Edwin Mejia-Morales v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2476
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EDWIN DEJESUS MEJIA-MORALES,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of the Board of Immigration Appeals
(BIA-1: A078-282-289)
Immigration Judge: David Cheng
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Submitted under Third Circuit LAR 34.1(a)
March 3, 2020
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.
(Filed: March 6, 2020)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.
Edwin De Jesus Mejia-Morales petitions for review of an order of the Board of
Immigration Appeals affirming an Immigration Judge’s order denying his motion to
reopen his removal proceedings. We will deny the petition for review.
I
A native of Guatemala, Mejia-Morales entered the United States without
admission or parole on August 31, 2005. The next day, the Department of Homeland
Security served him with a Notice to Appear, charging him as removable under 8 U.S.C.
§ 1182(a)(6)(A)(i). The Notice indicated that the initial hearing would be “on a date to be
set at a time to be set.” AR 487. Meija-Morales received notice of the date and time of his
hearing, and later applied for asylum, withholding of removal, and protection under the
Convention Against Torture. When Mejia-Morales did not appear at a merits hearing
scheduled for February 4, 2015, the IJ ordered him removed in absentia. Mejia-Morales
later averred that he arrived at court just after the IJ ordered him removed.
On November 2, 2018—1,368 days after the IJ ordered removal—Mejia-Morales
filed a motion to reopen under 8 C.F.R. § 1003.23(b)(1). The IJ denied that motion as
untimely, so Mejia-Morales appealed. After the BIA dismissed the appeal, Mejia-Morales
filed a timely petition for review in this Court.
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II 1
Mejia-Morales raises two arguments in this appeal, one jurisdictional and one on
the merits. His jurisdictional challenge—that his Notice to Appear was defective—is
foreclosed by our opinion in Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019). His
merits challenge—that the agency should have heard his untimely motion to reopen—is
unpersuasive for the reasons that follow.
A motion to reopen under 8 C.F.R. § 1003.23 typically must be filed within 90
days of the final order of removal. 8 C.F.R. § 1003.23(b)(1). But in this case, Mejia-
Morales’s challenge to the order of removal entered in absentia is governed by 8 U.S.C.
§ 1229a(b)(5)(C)(i), which provides that the order may be rescinded only on “a motion to
reopen filed within 180 days after the date of the order [] if [he] demonstrates that the
failure to appear was because of exceptional circumstances.” Id. That 180-day period is
subject to equitable tolling, however. Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.
2005).
Mejia-Morales claims equitable tolling saves his untimely motion because his
prior counsel was ineffective. See Mahmood v. Gonzales, 427 F.3d 248, 258 (3d Cir.
2005). Yet even if counsel provided ineffective assistance, Mejia-Morales must
demonstrate that he acted diligently “over the entire period for which tolling is desired.”
Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011). The BIA held that Mejia-Morales
was not diligent when he sought to reopen his case more than three years after he was
1
We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a).
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ordered removed. In so holding, the BIA did not abuse its discretion because its decision
was not arbitrary, irrational, or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166,
174 (3d Cir. 2002); Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).
The IJ acknowledged that Mejia-Morales provided evidence of ineffective
assistance of counsel, but determined that he failed to explain his lack of diligence in
waiting to file the motion. Likewise, the BIA concluded: “[a]t the latest, [Mejia-Morales]
should have filed his motion to reopen on August 3, 2015, 180 days after the entry of the
removal order.” AR 3. Yet Mejia-Morales did not file the motion until November 2,
2018. It’s true he provided an affidavit to the BIA stating that he “called [his attorney] for
updates throughout the years and [was told] to just wait,” and after being detained by ICE
in October 2018, “it was brought to [his] attention that . . . no motion to reopen was ever
filed.” AR 43 ¶¶ 3, 4; AR 131. But as the BIA observed, Mejia-Morales provided no
details about those calls or about any other contacts with his attorney relative to filing a
motion to reopen. Accordingly, it found a lack of due diligence during the lengthy delay
from expiration of the 180-day period after the order of removal in absentia (August 3,
2015) until November 2, 2018. So equitable tolling was unwarranted.
Mejia-Morales argues that our opinion in Borges supports equitable tolling in his
case. But unlike this case, in Borges the petitioner was diligent and there was evidence of
fraud that dissuaded him from pursuing relief. 402 F.3d at 405–07. Mejia-Morales only
made some calls and waited until he was detained more than three years later before
filing his motion.
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In sum, we perceive no abuse of discretion in the BIA’s determination that Mejia-
Morales’s wait-and-see approach failed to demonstrate the requisite diligence necessary
to rescue him from the 1,188-day delay in filing his motion to reopen. So we will deny
his petition for review.
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