Gerson Ruano-Salazar v. Jefferson Sessions, III ( 2018 )

Case: 17-60322 Document: 00514408903 Page: 1 Date Filed: 03/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60322 FILED
Summary Calendar March 30, 2018
Lyle W. Cayce
Clerk
GERSON OSWALDO RUANO-SALAZAR,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 652 308
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
After failing to appear at his 15 November 2005 removal hearing, Gerson
Oswaldo Ruano-Salazar, a native and citizen of Guatemala, was ordered
removed from the United States in absentia. More than ten years later, Ruano
moved, in April 2016, to reopen his removal proceedings and to rescind the in
absentia removal order. The Immigration Judge (IJ) denied the motion, and
the Board of Immigration Appeals (BIA) dismissed the appeal. Ruano petitions
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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for review of the BIA’s order. For the following reasons, there was, inter alia,
no abuse of the BIA’s discretion. Barrios-Cantarero v. Holder, 772 F.3d 1019,
1021 (5th Cir. 2014).
First, Ruano asserts the BIA erred in denying his motion to rescind the
in absentia removal order because he did not receive actual notice of the
removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). He concedes, however, that he
did not provide the immigration court with an address for service, despite
receiving written and oral notice of his obligation to do so. 8 U.S.C.
§ 1229(a)(1)(F)(i). Accordingly, he is not entitled to rescission of the in absentia
removal order based on lack of notice. Gomez-Palacios v. Holder, 560 F.3d 354,
361 (5th Cir. 2009). Moreover, because his motion to rescind was filed more
than 180 days after entry of the final order of removal, Ruano may not rely on
“exceptional circumstances” to excuse his failure to provide an address for
service. 8 U.S.C. § 1229a(b)(5)(C).
Next, Ruano contends the BIA erred in finding equitable tolling was not
applicable to the relevant statutory period in which he was permitted to file a
motion to reopen. Equitable tolling is warranted only if Ruano 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) (quoting Menominee
Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016)). Ruano fails
to establish he was diligent in seeking relief from the order of removal.
Along that line, his claims he was deceived by various persons who
represented themselves as attorneys while working on his immigration case
fall short of establishing diligence throughout the relevant over ten-year
period. In that regard, Ruano does not assert he ever independently inquired
regarding the status of his immigration proceedings, despite his own
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acknowledgement he knew he needed to “address [his] immigration status”
and “deal with the consequences of missing” his hearing before the IJ.
Furthermore, it was his failure to comply with his duty to update his address—
a delay of his own making—that led to the entry of the in absentia removal
order and the ensuing over ten-year period before he sought to reopen his case.
E.g., Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010).
Finally, Ruano claims this court should remand this case in order for the
BIA to evaluate his circumstances “more thoroughly”, and asserts its decision
fails to “state its reasoning and how it weighed” his equities in denying relief.
We disagree; the BIA’s order “reflect[s] meaningful consideration of the
relevant substantial evidence supporting [his] claims”. Abdel-Masieh v. INS,
73 F.3d 579, 585 (5th Cir. 1996). And, to the extent Ruano contends the BIA’s
refusal to exercise its discretion to reopen the removal proceedings sua sponte
was error and seeks remand for the BIA to reconsider exercising its discretion,
we lack jurisdiction to consider such a claim. Enriquez-Alvarado v. Ashcroft,
371 F.3d 246, 248–50 (5th Cir. 2004).
DISMISSED in PART; DENIED in PART.
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