Castillo-Trevino v. Garland ( 2023 )

Case: 21-60820 Document: 00516685015 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 22, 2023
No. 21-60820 Lyle W. Cayce
Summary Calendar Clerk
____________
Alejandro Castillo-Trevino,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A018 950 320
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Petitioner Alejandro Castillo-Trevino, a native and citizen of Mexico,
petitions us to review a decision of the Board of Immigration Appeals (BIA)
dismissing his appeal. Castillo-Trevino pleaded guilty to a felony in 2004 and
was ordered removed in 2005. In 2021, Castillo-Trevino filed a pro se motion
before the immigration judge (IJ) to reopen his removal proceedings. The IJ
declined to equitably toll the 90-day limitations period under 8 U.S.C. §
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60820 Document: 00516685015 Page: 2 Date Filed: 03/22/2023
No. 21-60820
1229a(c)(7)(C) and denied the motion to reopen pursuant to the departure
bar under 8 C.F.R. § 1003.23(b)(1).
We consider the IJ’s decision in our review because the BIA adopted
it. See Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016). We review
the denial of a motion to reopen for abuse of discretion. Flores-Moreno v. Barr,
971 F.3d 541, 544 (5th Cir. 2020). We have jurisdiction to review “whether
an undisputed set of facts demonstrates diligence on the part of an alien
requesting equitable tolling.” Londono-Gonzalez v. Barr, 978 F.3d 965, 967
(5th Cir. 2020); see 8 U.S.C. § 1252(a)(2)(D).
Equitable tolling is only warranted if the Petitioner demonstrates “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.”
Flores-Moreno, 971 F.3d at 545 (internal quotation marks and citation
omitted). The diligence element “requires the litigant to establish that he
pursued his rights with reasonable diligence, not maximum feasible
diligence.” Id. (internal quotation marks and citation omitted).
The IJ and BIA did not err in determining that Castillo-Trevino failed
to demonstrate the diligence required for equitable tolling. See Flores-Moreno,
971 F.3d at 545. The legal remedy of a motion to reopen has existed since well
before Castillo-Trevino was ordered removed in 2005. See Garcia-Carias v.
Holder, 697 F.3d 257, 261 (5th Cir. 2012) (recounting the remedy’s history).
Castillo-Trevino fails to adequately describe his attempts to obtain legal as-
sistance—during the 16 years between his removal and motion to reopen—
and why he would not have learned of a basis for filing his motion to reopen
earlier. He provides no reason for waiting until 2021 to act on his cited
changes in law. See Londono-Gonzalez, 978 F.3d at 968 (upholding the BIA’s
denial of equitable tolling when the motion to reopen was filed more than
three years after issuance of the pertinent case law).
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Case: 21-60820 Document: 00516685015 Page: 3 Date Filed: 03/22/2023
No. 21-60820
Castillo-Trevino’s motion does not qualify as a statutory motion to
reopen under § 1229a(c)(7) because there is no equitable tolling here. See
Lugo-Resendez, 831 F.3d at 342-43. The BIA and IJ were correct in finding
that the departure bar applied. See Ovalles v. Holder, 577 F.3d 288, 299-300
(5th Cir. 2009); § 1003.23(b)(1). We therefore need not address Castillo-
Trevino’s remaining contentions, but we note that this case does not present
exceptional circumstances warranting an appointment of counsel. See Ulmer
v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
The petition for review is DENIED.
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