Ovalles v. Rosen ( 2021 )

Case: 17-60438 Document: 00515696726 Page: 1 Date Filed: 01/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 6, 2021
No. 17-60438 Lyle W. Cayce
Clerk
Ruben Ovalles,
Petitioner,
versus
Jeffrey A. Rosen, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A040 070 535
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Jones, Smith, and Elrod, Circuit Judges.
Edith H. Jones, Circuit Judge:
Petitioner Ruben Ovalles asserts on appeal that the Board of
Immigration Appeals (the “Board”) erroneously failed to apply equitable
tolling to his motion to reopen in light of Lugo-Resendez v. Lynch, 831 F.3d 337(5th Cir. 2016). After considering the record, we DENY Ovalles’s petition
for review.
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No. 17-60438
I. BACKGROUND
This case comes back to the Fifth Circuit upon remand from the
Supreme Court. See Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir.
2018), vacated and remanded 140 S. Ct. 1062 (2020). The facts are
undisputed. Ovalles is a native and citizen of the Dominican Republic who
first came to the United States in 1985 as a child. See Ovalles v. Holder,
577 F.3d 288, 291 (5th Cir. 2009). He grew up in the United States with
much of his immediate family and attended high school in this country. In
2003, Ovalles was convicted of attempted drug possession and sentenced to
five years of probation. He was charged with removability pursuant to
8 U.S.C. §§ 1227(a)(2)(B)(i) (conviction of a controlled substance violation)
and 1227(a)(2)(A)(iii) (conviction of an aggravated felony). See Ovalles v.
Holder, 577 F.3d at 291. An immigration judge (“IJ”) found Ovalles
removable based on Ovalles’s controlled substance conviction but granted
his request for cancellation of removal after concluding that Ovalles’s
conviction was not an aggravated felony. See id. The Board reversed the IJ’s
grant of cancellation of removal, concluding that Ovalles had in fact been
convicted of an aggravated felony, and Ovalles did not seek review of the
Board’s decision from this court. See id. (describing the underlying IJ and
Board decisions in more detail). Ovalles was removed to the Dominican
Republic in 2004. See id.In 2007, Ovalles filed his first motion to reconsider or reopen his
immigration proceedings. He argued that, under Lopez v. Gonzales,
549 U.S. 47, 127 S. Ct. 625 (2006), his possession offense did not constitute
an aggravated felony as defined by the Immigration and Nationality Act.
Ovalles, 577 F.3d at 291. The Board noted that Ovalles’s motion was
untimely, but ultimately chose not to consider the motion based on the
departure bar. Id. On appeal, Ovalles conceded his motion to reopen was
untimely. See id. at 299 (recognizing that Ovalles “concededly did not
2
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request reopening with[in] the specified allowed time even as calculated from
the time the law changed”). A panel of this court observed that he waited
“nearly eight months” after the Supreme Court issued Lopez to file his
motion and denied Ovalles’s petition as untimely. Id. at 295, 299–300.
Ovalles filed his second motion to reopen—the present motion—in
March 2017. He argued that Lugo-Resendez “finally delivered [him] with the
final piece to the puzzle” by “permitting the filing of a statutory motion
through tolling of the 90-day deadline.” The Board denied the motion as
“untimely and number-barred” and concluded that Ovalles did not
demonstrate equitable tolling was warranted. On appeal, a panel of this court
dismissed the petition for lack of jurisdiction, but the Supreme Court
disagreed. Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 2018) (per
curiam), vacated and remanded sub nom. Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020). On remand, we now consider whether Ovalles’s
motion to reopen merits equitable tolling. 1
II. DISCUSSION
Denial of a motion to reopen is reviewed under a “highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005); accord Guerrero-Lasprilla v. Barr, 822 F. App’x 254, 256 (5th Cir.
2020) (per curiam) (unpublished) (articulating the same standard on remand
from the Supreme Court). Factual findings are reviewed for substantial
evidence and legal conclusions are reviewed de novo. Londono-Gonzalez v.
Barr, 978 F.3d 965, 968 (5th Cir. 2020); Morales v. Sessions, 860 F.3d 812,
1
The government argues that Ovalles waived his equitable tolling argument by not
raising the issue in his first motion to reopen and that, alternatively, his petition falls within
the number-bar limitation for statutory motions to reopen. We do not decide these issues
because Ovalles does not merit equitable tolling under Fifth Circuit precedent even
assuming, arguendo, that the issue was not waived or number-barred.
3
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816–17 (5th Cir. 2017); accord Guerrero-Lasprilla, 822 F. App’x at 256.
Ovalles argues in his supplemental briefing that the review should be entirely
de novo because “applying law to facts results in a legal conclusion.” But we
see no reason to depart from the well-established formulation of the standard
of review for motions to reopen in this circuit. 2 Accord Guerrero-Lasprilla,
822 F. App’x at 256 (rejecting a similar argument).
In order to equitably toll the 90-day time period to file a statutory
motion to reopen under 8 U.S.C. § 1229a(c)(7), an alien must demonstrate
that (1) he “has been pursuing his rights diligently” and (2) an extraordinary
circumstance prevented him from timely filing. Lugo-Resendez, 831 F.3d at
344. An intervening legal change can constitute an extraordinary
circumstance. See Londono-Gonzalez, 978 F.3d at 968; accord Guerrero-
Lasprilla, 822 F. App’x at 256–57. Ovalles contends that the 90-day time
limit for filing his second motion to reopen should be tolled until he learned
of the Lugo-Resendez decision in December 2016. But this court recently
concluded that Lugo-Resendez did not constitute an intervening change in
binding precedent that satisfies the “extraordinary circumstance” element.
Londono-Gonzalez, 978 F.3d at 968. This is because Lugo-Resendez itself
recognized that, “[d]espite numerous opportunities to do so,” the Fifth
Circuit had “not decided whether equitable tolling applies to the 90-day
deadline for filing a motion to reopen under § 1229a(c)(7).” Lugo-Resendez,
831 F.3d at 343. Thus, “Lugo-Resendez resolved an open question” and was
not an intervening change in binding precedent. Londono-Gonzalez, 978 F.3d
at 968. “Moreover, uncertain legal terrain does not create an obstacle that
stands in the way of an individual meeting the motion to reopen deadline.”
2
In any event, the result would be the same under either formulation.
4
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Id. And, as a practical matter, petitioners were in fact filing equitable tolling
requests prior to the Lugo-Resendez decision. Id.
Ovalles offers two contrary arguments. First, he contends that we
should not decide the case based on a purported lack of extraordinary
circumstances because “the BIA never made such a finding” and “the
government cannot defend an agency’s decision on a basis not articulated by
the agency.” But the Board did conclude that Ovalles “has not shown that
the time and number limitations on motions should be equitably tolled under
Lugo-Resendez.” Additionally, the Board stated that Ovalles “has not
demonstrated the requisite due diligence to warrant equitable tolling”
because he waited until eight months after Lugo-Resendez was published to
file his motion, and separately concluded that Ovalles “has not demonstrated
an exceptional situation warranting sua sponte reopening.”
Importantly, Ovalles does not dispute that his due diligence was
properly raised, indeed, he calls it the “only merits issue” before this court.
But due diligence and extraordinary circumstances are related inquiries: an
alien’s due diligence is considered in light of his circumstances. Thus,
assessing due diligence necessarily includes a temporal component, which
involves determining whether and when a purported extraordinary
circumstance occurred. See Londono-Gonzalez, 978 F.3d at 967–68
(addressing “the diligence issue” on remand with a focus on “when to
measure diligence,” concluding that Lugo-Resendez was not an
“extraordinary circumstance that stood in his way,” and holding that the
Board did not err in measuring diligence based on a different case).
The Board concluded that Ovalles did not demonstrate due diligence
because “he waited approximately [eight] months after the Fifth Circuit
issued Lugo-Resendez v. Lynch . . . to file his current motion.” This
conclusion applies with even greater force in light of the conclusion in
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Londono-Gonzalez that Lugo-Resendez did not constitute an extraordinary
circumstance that stood in the way of aliens seeking equitable tolling.
Second, Ovalles argues that Lopez v. Gonzales establishes an
extraordinary circumstance. But the extraordinary circumstance must have
“stood in his way and prevented timely filing” of his second motion to
reopen in March 2017. Lugo-Resendez, 831 F.3d at 344. Lopez was decided in
2006. Thus, if Lugo-Resendez doesn’t constitute an extraordinary
circumstance (and this court has previously determined that it does not),
then Ovalles presents no viable alternative from which he can show
compliance with the 90-day filing deadline even with the benefit of equitable
tolling. 3
III. CONCLUSION
Based on the foregoing, we DENY the petition for review.
3
The other cases cited by Ovalles pre-date Lugo-Resendez. See, e.g., Mata v. Lynch,
576 U.S. 143, 135 S. Ct. 2150 (2015); Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012).
Furthermore, the Londono-Gonzalez decision also casts doubt on whether Mata could
constitute extraordinary circumstances for tolling purposes. Londono-Gonzalez, 978 F.3d
at 968 (“But prior to Mata and Lugo-Resendez, petitioners in this circuit were regularly
asking the BIA to equitably toll the motion to reopen limitations period.”).
6