Jose Almaguer v. William Barr, U. S. Atty Gen ( 2020 )

Case: 19-60170 Document: 00515627701 Page: 1 Date Filed: 11/05/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 19-60170 Fifth Circuit
Summary Calendar FILED
November 5, 2020
Lyle W. Cayce
Jose Ignacio Almaguer, 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. A034 334 373
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Jose Ignacio Almaguer, a native and citizen of Mexico, seeks review of
an order of the Board of Immigration Appeals (BIA) dismissing his appeal of
the Immigration Judge’s (IJ) order denying his motion to reopen removal
proceedings. The BIA concluded that Almaguer’s motion, which was filed
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60170
more than 17 years after the entry of the final order of removal, was untimely
on its face and that equitable tolling was not warranted because Almaguer
failed to show that he pursued his rights diligently. The BIA found, in the
alternative, that Almaguer failed to establish his prima facie eligibility for
relief. The BIA also rejected Almaguer’s argument that reopening was
warranted in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).
To the extent that Almaguer’s arguments implicate the validity of his
removal order, we lack jurisdiction to consider the issue as Almaguer did not
appeal the removal order to the BIA and therefore failed to exhaust his
administrative remedies. See Mendias-Mendoza v. Sessions, 877 F.3d 223, 227-
28 (5th Cir. 2017); Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001).
Insofar as Almaguer argues that the BIA ignored his arguments on this issue,
we lack jurisdiction to consider his unexhausted challenge to the BIA’s “act
of decisionmaking.” Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009); see
also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
We have jurisdiction to review the denial of a statutory motion to
reopen based on untimeliness, Mata v. Lynch, 576 U.S. 143, 147 (2015),
including the question presented here, which is, whether a given set of facts
gives rise to equitable tolling, see Flores-Moreno v. Barr, 971 F.3d 541, 544 (5th
Cir. 2020). The BIA’s determination that Almaguer provided only vague
statements supporting his assertion that he acted diligently in discovering the
possibility of relief was not erroneous or inconsistent with our reasoning in
Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017), or Mejia v. Barr, 952
F.3d 255 (5th Cir. 2020), in which we explained that “reasonable diligence”
means “within a reasonable time,” rather than “within a reasonable time but
only when you think you can win.” Mejia, 952 F.3d at 259 (internal quotation
marks omitted). Nor do we find that the BIA’s decision represented an
unacceptably harsh application of equitable tolling under the circumstances.
In light of the record before it, the BIA’s decision regarding equitable tolling
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was not “capricious, irrational, utterly without foundation in the evidence,
based on legally erroneous interpretations of statutes or regulations, or based
on unexplained departures from regulations or established policies.” Id.
(internal quotation marks and citation omitted).
The BIA also affirmed the IJ’s alternative finding that Almaguer failed
to establish his prima facie eligibility for relief by failing to provide sufficient
documentary evidence of his prior Arkansas conviction and sentence, which
was relevant to the relief he sought. Almaguer has abandoned any challenge
to the BIA’s determination with respect to his eligibility for cancellation of
removal, see Singh v. Sessions, 898 F.3d 518, 521 (5th Cir. 2018); however, he
argues that he has demonstrated prima facie eligibility for a waiver of
inadmissibility under former § 212(c) of the Immigration and Nationality
Act. Specifically, Almaguer argues that he provided sufficient evidence to
show that he did not serve five or more years for his 1994 drug offense.
Because Almaguer was removable based on his conviction for a controlled
substance offense, see 8 U.S.C. § 1182(a)(2)(A)(i)(II), and because his
argument amounts to a challenge to the BIA’s factual determination that he
failed to submit sufficient documentary evidence establishing his prima facie
eligibility for a § 212(c) waiver, see Chen v. Gonzales, 470 F.3d 1131, 1134 (5th
Cir. 2006), we lack jurisdiction to consider the issue, see 8 U.S.C.
§ 1252(a)(2)(C)-(D); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068
(2020).
Finally, in rejecting Almaguer’s argument that reopening was
warranted in light of Pereira because the notice to appear (NTA) was
deficient and divested the immigration court of jurisdiction over his removal
proceedings, the BIA explicitly relied on its prior opinion in Matter of
Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018), which held that a two-
step notice procedure was sufficient to meet the statutory requirements.
Although Almaguer urges us to reject the rationale in Bermudez-Cota, his
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argument is foreclosed by Pierre-Paul v. Barr, 930 F.3d 684, 690-91 (5th Cir.
2019), cert. denied, 140 S. Ct. 2718 (2020), in which we explicitly endorsed a
two-step notice process. Moreover, the record reflects that Almaguer was
personally served with the NTA, that he admitted the allegations in the NTA
and conceded his removability, and that he was subsequently served, through
counsel, with a notice of hearing that set forth the date, time, and place of the
hearing. Thus, the BIA did not abuse its discretion by concluding that
reopening was not warranted on this basis. See Mejia, 952 F.3d at 259.
For these reasons, the petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.
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