Candelaria Hernandez v. William Barr, U. S. Atty G ( 2020 )

Case: 19-60358 Document: 00515574481 Page: 1 Date Filed: 09/22/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 19-60358
Summary Calendar
FILED
September 22, 2020
Lyle W. Cayce
Candelaria Hernandez, Clerk
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 529 944
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Candelaria Hernandez, a native and citizen of Mexico, petitions this
court for review of an order of the Board of Immigration Appeals (BIA) that
denied her motion to reopen after concluding that she had not shown she
pursued her rights with due diligence and thus was not entitled to equitable
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-60358 Document: 00515574481 Page: 2 Date Filed: 09/22/2020
No. 19-60358
tolling of the period to file her motion to reopen. She argues that the BIA
erred by not considering whether she had shown extraordinary
circumstances to warrant equitable tolling and by alternately concluding that
her failure to file a new application for relief also warranted denying her
motion.
A motion to reopen an order of removal must be filed within 90 days
of entry of the order, but this time period is subject to equitable tolling.
8 U.S.C. § 1229a(c)(7)(C)(i); Lugo-Resendez v. Lynch, 831 F.3d 337, 343-44
(5th Cir. 2016). Equitable tolling is warranted when one establishes both that
she has diligently pursued her rights and that extraordinary circumstances
prevented timely filing. Id. at 344 (internal quotation marks and citation
omitted).
Motions to reopen are highly disfavored, and one who brings such a
motion has a heavy burden. Ojeda-Calderon v. Holder, 726 F.3d 669, 672 (5th
Cir. 2013). This court reviews an immigration court’s denial of a motion to
reopen removal proceedings “under a highly deferential abuse-of-discretion
standard.” Id. (internal quotation marks and citation omitted). This
standard dictates that the BIA’s denial of the motion to reopen be upheld
unless it is “capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Id. (internal quotation marks and
citation omitted).
Hernandez has not met this stringent standard. Our review shows no
abuse of discretion in connection with the BIA’s determination that she had
not established due diligence and its concomitant denial of her motion to
reopen. See id. Because she shows no abuse of discretion in connection with
the BIA’s diligence determination, we need not consider her remaining
2
Case: 19-60358 Document: 00515574481 Page: 3 Date Filed: 09/22/2020
No. 19-60358
arguments. See Flores-Moreno v. Barr, __ F.3d __, 2020WL4931651, 2
(5th Cir. Aug. 24, 2020). The petition for review is DENIED.
3