Miranda-Cruz v. Garland ( 2023 )

Case: 21-60065 Document: 00516614031 Page: 1 Date Filed: 01/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 18, 2023
No. 21-60065 Lyle W. Cayce
Clerk
Harold Eduardo Miranda-Cruz; Damny Ayalila Castro-
Amador; Boris Carlo Miranda-Castro,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Appeal for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A213 292 536; A213 292 537; A213 292 538
Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Petitioners are a family of Nicaraguan citizens who, after being
ordered removed from the United States in absentia, subsequently moved to
reopen their removal proceedings. The Board of Immigration Appeals (BIA)
adopted the Immigration Judge’s (IJ) ruling that Petitioners’ motion was
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60065 Document: 00516614031 Page: 2 Date Filed: 01/18/2023
No. 21-60065
untimely and not subject to equitable tolling.1 They now petition for our
review. We review the BIA’s decision under a “highly deferential abuse-of-
discretion standard” and must affirm it “as long as [the decision] is not
capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach.”
Flores-Moreno v. Barr, 971 F.3d 541, 544 (5th Cir. 2020) (citation omitted).
We review the IJ’s decision to the extent it influenced the BIA’s ruling.
Cardona-Franco v. Garland, 35 F.4th 359, 363 (5th Cir. 2022) (citing Qorane
v. Barr, 919 F.3d 904, 909 n.1 (5th Cir. 2019)).
Petitioners, now joined by the Government,2 argue the BIA and IJ
abused their discretion in denying equitable tolling. Having studied the briefs
and the record, as well as hearing oral argument, we deny the petition for
review.
Petitioners first argue that they faced extraordinary circumstances
justifying equitable tolling because, after first unlawfully entering the United
States in 2019, they were required by then-existing immigration policy to
return to Mexico to await their removal hearing. See Biden v. Texas, 142 S. Ct.
2528, 2535 (2022) (discussing “Migrant Protection Protocols”); 8 U.S.C.
§ 1225(b)(2)(C). We lack jurisdiction to consider this argument because
Petitioners failed to exhaust it before the BIA. See Cruz Rodriguez v. Garland,
993 F.3d 340, 345 (5th Cir. 2021) (citing 8 U.S.C. § 1252(d)(1); Roy v.
1
See 8 U.S.C. § 1229a(b)(5)(C)(i), (c)(7)(C)(iii) (in absentia removal order may be
rescinded only upon motion to reopen filed within 180 days, provided alien shows failure
to appear was due to “exceptional circumstances”); Eneugwu v. Garland, --- F.4th ---, 2022
WL 17351907, at *2–3 (5th Cir. Dec. 1, 2022) (equitable tolling requires an alien to show he
was “pursuing his rights diligently” and an “extraordinary circumstance . . . prevented
timely filing” (quoting Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016))).
2
The Government previously opposed Petitioners’ motion to reopen before the
BIA and the IJ but has now changed its position.
2
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No. 21-60065
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004)). Even had they exhausted the
issue, Petitioners cite no authority for the proposition that complying with
federal immigration policy can constitute extraordinary circumstances for
equitable tolling purposes. Cf. Pena-Lopez v. Garland, 33 F.4th 798, 807 (5th
Cir. 2022) (concluding the “usual hardships of a relocation” do not present
“extraordinary circumstance[s]”).
Second, Petitioners claim that, on the day of their scheduled removal
hearing in September 2019, they were kidnapped by a Mexican drug cartel,
held for ransom, and released after 15 days. The IJ found no evidence to
substantiate the kidnapping. But, even assuming the kidnapping occurred, as
both the BIA and the IJ pointed out, Petitioners would still have had 165 days
following their release to timely file a motion to reopen, but failed to do so.
We see no basis to disagree with the BIA’s and IJ’s reasoning, much less to
find an abuse of discretion.
Finally, Petitioners contend they were prevented from timely filing
because, after they again unlawfully entered the United States in 2020, they
were detained by the Department of Homeland Security. This detention
could not have justified Petitioners’ untimely filing, however. Their deadline
for moving to reopen expired on March 24, 2020. As the BIA pointed out,
Petitioners did not decide to return to the United States until that same
month and, before that, the lead Petitioner was employed in Mexico.
Moreover, Petitioner’s affidavit suggests the family did not reenter the
United States until March 25, 2020—after the filing deadline had expired.
So, we see no abuse of discretion in the BIA’s ruling.3
3
The Government argues Petitioners diligently pursued their rights by attempting
to contact U.S. immigration officials following the alleged kidnapping. But the IJ found no
evidence of this, nor do Petitioners themselves raise the point on appeal. We therefore do
3
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No. 21-60065
PETITION DENIED.
not address it. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (a party
forfeits an argument by failing to brief it on appeal).
4