Morales-Duran v. Garland ( 2021 )

Case: 20-60397 Document: 00515818492 Page: 1 Date Filed: 04/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 12, 2021
No. 20-60397 Lyle W. Cayce
Summary Calendar Clerk
Fatima Prissila Morales-Duran; Eva Lisdey Morales-
Duran,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 453 302
BIA No. A208 453 306
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Fatima Prissila Morales-Duran and her derivative beneficiary Eva
Lisdey Morales-Duran, natives and citizens of El Salvador, petition for
review of an order of the Board of Immigration Appeals (BIA) denying their
*
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opinion should not be published and is not precedent except under the limited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: 20-60397 Document: 00515818492 Page: 2 Date Filed: 04/12/2021
No. 20-60397
motion to reopen the removal proceedings. The BIA determined that the
statutory motion was untimely, that Morales-Duran was not entitled to
equitable tolling, and that her request for voluntary departure was foreclosed
by circuit precedent; the BIA also declined to reopen the proceedings sua
sponte. Citing Pereira v. Sessions, 138 S. Ct. 2105, 2110, 2113-14 (2018),
Morales-Duran challenges the BIA’s determinations.
While Morales-Duran acknowledges that her 2019 statutory motion
to reopen was filed after the 90-day deadline, see 8 U.S.C.
§ 1229a(c)(7)(C)(i), she argues that the BIA erroneously failed to analyze her
equitable tolling argument. Although her petition for review was pending for
over one year, the time for filing a motion to reopen begins to run from the
date of the final administrative order of removal, and she was not prevented
from filing while her case was pending before this court. § 1229a(c)(7)(C)(i).
Morales-Duran cites to no authority for the proposition that a motion to
reopen seeking voluntary departure would cause an appellate court to reject
or dismiss a petition for review challenging the denial of a request for asylum
or withholding of removal. She has not shown that the BIA abused its
discretion in concluding that the pendency of the petition for review did not
constitute an extraordinary circumstance warranting tolling. See Lugo-
Resendez v. Lynch, 831 F.3d 337, 343-44 (5th Cir. 2016); Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005).
The BIA ruled in the alternative that Morales-Duran was not entitled
to relief under Pereira. The Notice to Appear (NTA) initially served on
Morales-Duran omitted the date and time of her removal hearing, but she
subsequently received a notice of hearing (NOH) supplying the missing
information. Thus, any defect in the NTA was cured. See Pierre-Paul v. Barr,
930 F.3d 684, 693 (5th Cir. 2019), cert. denied, 140 S. Ct. 2718 (2020).
Additionally, while voluntary departure is available to aliens who have
accrued one year of physical presence in the United States, the counting of
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No. 20-60397
that time stopped when Morales-Duran received the NOH within two weeks
of her admitted entry without inspection in October 2015. See Yanez-Pena
v. Barr, 952 F.3d 239, 241 (5th Cir. 2020), petition for cert. filed (U.S. Apr. 6,
2020) (No. 19-1208). Morales-Duran’s arguments to the contrary are
foreclosed. See id.; see also Munoz-Granados v. Barr, 958 F.3d 402, 408 (5th
Cir. 2020) (reasoning that Yanez-Pena foreclosed a claim that the BIA erred
by deciding that an NTA was perfected by a subsequent NOH that triggered
the stop-time rule).
Accordingly, Morales-Duran’s petition for review is DENIED.
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