Reynosa-Romero v. Garland

Case: 22-60617 Document: 00516836944 Page: 1 Date Filed: 07/27/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60617
Summary Calendar FILED
____________ July 27, 2023
Lyle W. Cayce
David Reynosa-Romero, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A090 385 097
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Petitioner David Reynosa-Romero, a native and citizen of Mexico,
seeks review the Board of Immigration Appeals’s (“BIA”) decision denying
his 2021 motion to reopen his removal proceedings. Reynosa-Romero
contends that the BIA abused its discretion by failing to adequately articulate
the reasons for its denial of his motion or to cite the relevant grounds for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60617 Document: 00516836944 Page: 2 Date Filed: 07/27/2023
No. 22-60617
denial under precedent. Reynosa-Romero further contends that he is entitled
to equitable tolling. For the following reasons, Reynosa-Romero’s petition is
DISMISSED IN PART AND DENIED IN PART.
We review the BIA’s factual findings for substantial evidence and its
legal conclusions de novo. Ovalles v. Rosen, 984 F.3d 1120, 1123 (5th Cir.
2021), cert. denied sub nom. Ovalles v. Garland, 142 S. Ct. 107 (2021). Motions
to reopen or reconsider 1 are “particularly disfavored,” Nguhlefeh Njilefac v.
Garland, 992 F.3d 362, 365 n.3 (5th Cir. 2021). We review the denial of such
motions by BIA “under a highly deferential abuse-of-discretion standard.”
Ovalles, 984 F.3d at 1123 (internal quotation marks and citation omitted);
Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017).
A motion to reopen must be filed within 90 days of the order of
removal. A motion to reconsider must be filed within 30 days of such an
order. 8 U.S.C. § 1229a(c)(6)(B), (c)(7)(C)(i). Both time limitations are
subject to equitable tolling. See Gonzalez Hernandez v. Garland, 9 F.4th 278,
284–87 (5th Cir. 2021), cert. denied, 143 S. Ct. 86 (2022); Lugo-Resendez v.
Lynch, 831 F.3d 337, 344 (5th Cir. 2016). An alien is entitled to equitable
tolling if he shows “(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). Whether a petitioner has exercised due
diligence for purposes of equitable tolling is a mixed question of fact and law
_____________________
1
In light of this court’s decision in Gonzalez Hernandez v. Garland, 9 F.4th 278,
286 (5th Cir. 2021), cert. denied, 143 S. Ct. 86 (2022), Reynosa-Romero’s motion is more
properly considered as a motion to reconsider because he contends that a change in law,
specifically, INS v. St. Cyr, 533 U.S. 289 (2001), invalidated the immigration court’s 1996
order. See Gonzalez Hernandez, 9 F.4th at 286. The treatment of the motion as such,
however, does not affect our analysis in this case.
2
Case: 22-60617 Document: 00516836944 Page: 3 Date Filed: 07/27/2023
No. 22-60617
that we have jurisdiction to review. See Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1068 (2020).
We conclude that Reynosa-Romero’s equitable tolling argument is
unavailing. The BIA’s succinct analysis in this matter reviews the efforts by
Reynosa-Romero and his wife over the course of twenty years, as set forth in
his evidence. Given the sporadic nature of the efforts and the lengthy span of
time, the BIA rationally concluded that the evidence was insufficient to show
due diligence or an impediment to timely filing. See Gonzalez Hernandez, 9
F.4th at 283. Although Reynosa-Romero contends that the BIA failed to
discuss the “extraordinary circumstance [that] stood in his way and
prevented timely filing,” Lugo-Resendez, 831 F.3d at 344, the only support
that he presented to the BIA in his motion to reopen was the 2001 decision
in I.N.S. v. St. Cyr, 533 U.S. 289. The agency specifically considered
Reynosa-Romero’s efforts “between the Supreme Court’s decision in St.
Cyr and the filing of the instant motion to reopen.”
Reynosa-Romero further asserts that the BIA failed to address the
grounds for denying a motion to reopen as set forth in I.N.S. v. Abudu, 485
U.S. 94, 104-05 (1988). However, because Reynosa-Romero failed to
demonstrate that his motion to reopen was timely through equitable tolling
under the relevant law, the BIA was not required to address the merits of his
motion to reopen. See I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976); Londono-
Gonzalez v. Barr, 978 F.3d 965, 967–68 (5th Cir. 2020); cf. Abudu, 485 U.S.
at 104–05. The BIA acted within its discretion in denying the motion to
reopen or reconsider on those grounds. See Gonzalez Hernandez, 9 F.4th at
284.
The BIA articulated and applied the relevant legal analyses in this
matter. Reynosa-Romero has failed to show error in the BIA’s denial of
equitable tolling or that its conclusion that his motion to reopen was
3
Case: 22-60617 Document: 00516836944 Page: 4 Date Filed: 07/27/2023
No. 22-60617
untimely. See Ovalles, 984 F.3d at 1123. The petition for review is therefore
DENIED as to the denial of equitable tolling and the conclusion that
Reynosa-Romero’s motion to reopen or reconsider was untimely.
Moreover, we lack jurisdiction to consider Reynosa-Romero’s
challenge to the denial of sua sponte reopening, so the petition is
DISMISSED as to that challenge. Hernandez-Castillo v. Sessions, 875 F.3d
199, 206 (5th Cir. 2017); see Djie v. Garland, 39 F.4th 280, 288 (5th Cir.
2022).
4