Cortez-Albarron v. Garland ( 2023 )

Case: 23-60328 Document: 00516997101 Page: 1 Date Filed: 12/11/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-60328 FILED
Summary Calendar December 11, 2023
____________ Lyle W. Cayce
Clerk
Obed Cortez-Albarron,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A075 218 002
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Obed Cortez-Albarron, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals (BIA) denying
his motion to reopen removal proceedings. As relevant here, the BIA
determined that the motion was untimely and that Cortez-Albarron did not
meet the standards for equitable tolling.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60328 Document: 00516997101 Page: 2 Date Filed: 12/11/2023
No. 23-60328
We review the BIA’s decision to deny a motion to reopen “under a
highly deferential abuse-of-discretion standard.” Ovalles v. Rosen, 984 F.3d
1120, 1123 (5th Cir. 2021) (internal quotation marks and citation omitted).
And in considering the BIA’s decision, we review legal conclusions de novo
and factual findings for substantial evidence. Id. (citations omitted).
Cortez-Albarron’s challenge to the BIA’s denial of equitable tolling
fails. Equitable tolling may be granted only if Cortez-Albarron demonstrates
“(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.”
Mejia v. Barr, 952 F.3d 255, 259 (5th Cir. 2020) (internal quotation marks
and citation omitted). “But ‘reasonable diligence’ means ‘within a
reasonable time.’ It does not mean ‘within a reasonable time but only when
you think you can win.’” Id. Here, Cortez-Albarron’s equitable tolling claim
stems from his becoming the beneficiary of his son’s approved I-130 petition.
But that circumstance came about only after Cortez-Albarron remained in
the United States for close to 20 years in violation of a previous order of
voluntary departure, during which time his son reached the age of eligibility
to file the I-130 petition. Thus, the BIA did not abuse its discretion in
determining that under the facts presented, Cortez-Albarron failed to make
the requisite showing for equitable tolling. See id.Accordingly, the petition for review is DENIED.
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