Sallah Lembou v. Garland

Case: 21-60326 Document: 00516051683 Page: 1 Date Filed: 10/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2021
No. 21-60326
Lyle W. Cayce
Summary Calendar Clerk
Georges Sallah Lembou,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A207 366 356
Before Jolly, Willett, and Ho, Circuit Judges.
Per Curiam:*
Georges Sallah Lembou, a native and citizen of Gabon, petitions for
review of an order by the Board of Immigration Appeals (BIA) denying his
motions for reconsideration and reopening. Sallah Lembou contends that the
BIA erred by not appropriately considering that his physical injuries and
*
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opinion should not be published and is not precedent except under the limited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. 21-60326
mental disorientation affected his ability to diligently pursue his rights and
caused exceptional circumstances warranting equitable tolling of the filing
deadlines. Sallah Lembou further argues that his positive equities, potential
eligibility for adjustment of status, and volatile medical and mental
predicament justified sua sponte reopening and that the BIA’s failure to
exercise its sua sponte authority was an abuse of discretion and equated to a
deprivation of his due process rights and his right to a fair hearing.
We review denials of motions to reopen and reconsider removal
proceedings under a highly deferential abuse-of-discretion standard. Lowe
v. Sessions, 872 F.3d 713, 715 & n.1 (5th Cir. 2017). It is uncontested that
Sallah Lembou’s motion to reconsider was untimely and that his motion to
reopen was untimely and numerically barred. See 8 U.S.C. § 1229a(c)(6)(B),
(c)(7); 8 C.F.R. § 1003.2(b)-(c). To obtain equitable tolling of the time and
numeric limits, a movant must establish (1) that he pursued his rights
diligently and “(2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th
Cir. 2016).
The BIA did not abuse its discretion in determining that Sallah
Lembou was not entitled to equitable tolling. See id. at 344-45. Nothing in
the record shows “an extraordinary circumstance beyond [Sallah Lembou’s]
control [that] prevented him from complying with the applicable deadline.”
Id. at 344 (internal quotation marks omitted). Moreover, the BIA’s decision
does not reflect an unacceptably harsh application of equitable tolling. Id. at
345.
To the extent Sallah Lembou argues that the BIA abused its discretion
in failing to exercise its sua sponte authority to reopen the proceedings, we
lack jurisdiction to review that portion of Sallah Lembou’s petition. See
Hernandez-Castillo v. Sessions, 875 F.3d 199, 206 (5th Cir. 2017). To the
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No. 21-60326
extent that he raises a due process claim based on the BIA’s refusal to
exercise its sua sponte authority to reopen the proceedings, there is no liberty
interest in a motion to reopen; thus, Sallah Lembou cannot establish a due
process violation. See Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550-51
(5th Cir. 2006).
The petition for review is DENIED IN PART and DISMISSED
IN PART.
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