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Gonzalez-Cantu v. Sessions

United States Court of Appeals, Fifth Circuit

August 1, 2017

ANGELICA GONZALEZ-CANTU, Petitioner,
v.
JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent.

         Petition for Review of an Order of the Board of Immigration Appeals

          Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Angelica Gonzalez-Cantu was removed from the United States in 2000 and filed a motion to reopen the removal proceeding in 2015. The immigration judge ("IJ") denied the motion as untimely, and the Board of Immigration Appeals ("BIA") dismissed Gonzalez-Cantu's appeal. She petitions for review of the BIA's denial, contending that the limitations period should have been equitably tolled. Because she has not met her burden to show that she is entitled to equitable tolling, we deny the petition.

         I.

         Gonzalez-Cantu, a native and citizen of Mexico, was admitted as a lawful permanent resident in 1992. In 2000, she was convicted in state court of driving while intoxicated ("DWI"). Shortly thereafter, she was served with a notice to appear charging her as removable under 8 U.S.C. § 1227(a)(2)(A)(iii), because she was an alien convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(F), namely, a "crime of violence" ("COV"). The IJ ordered Gonzalez-Cantu removed, and she alleges that she returned to Mexico.

         In March 2015, Gonzalez-Cantu filed a motion to reopen her removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A). She contended that the removal order was no longer valid in light of United States v. Chapa-Garza, 243 F.3d 921, 928 (5th Cir. 2001), which held that Texas DWI is not a COV and thus not an aggravated felony. Gonzalez-Cantu acknowledged that her motion was outside the 90-day statute of limitations, see 8 U.S.C. § 1229a(c)(7)(C), but she asserted that she had been precluded from filing a motion until 2012 because of the "departure bar, " which prohibits an IJ from considering motions to reopen from removed aliens who have already departed. See 8 C.F.R. § 1003.23(b)(1). She pointed to Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th Cir. 2012), in which this court, reversing the BIA, held that aliens have "a right to file a motion to reopen [under 8 U.S.C. § 1229a] regardless of whether they have left the United States." Gonzalez-Cantu maintained that limitations should have been equitably tolled until she discovered Garcia-Carias and that her motion was thus timely. In the alternative, she requested that the IJ reopen her case sua sponte. Finally, she averred that her removal resulted in a "gross miscarriage of justice" that warranted reopening.

         The IJ denied the motion as untimely, concluding that equitable tolling was inappropriate given that Gonzalez-Cantu had "failed to explain why she did not file her motion to reopen until several years after the legal changes invoked by her took effect." The IJ also declined to reopen sua sponte. Gonzalez-Cantu appealed to the BIA.

         The BIA dismissed the appeal, concluding that even if equitable tolling applied to motions to reopen, she had failed to show diligence in filing her motion. The BIA also concluded that the IJ did not abuse his discretion in declining to reopen sua sponte and that Gonzalez-Cantu's removal was not a gross miscarriage of justice because the removal order was valid at the time it was entered and executed.

         II.

         "An alien seeking to reopen his removal proceedings has two options: (1) he can invoke the court's regulatory power to sua sponte reopen proceedings under either 8 C.F.R. § 1003.23(b) or 8 C.F.R. § 1003.2(a); or (2) he can invoke his statutory right to reopen proceedings under 8 U.S.C. § 1229a(c)(7)." Lugo-Resendez v. Lynch, 831 F.3d 337, 340-41 (5th Cir. 2016). "The Immigration Court's regulatory authority is governed by § 1003.23(b) while the BIA's regulatory authority is governed by § 1003.2(a)." Id. at 341 n.9. Gonzalez-Cantu requested both forms of relief. We address the denial of the statutory request in this section and the denial of the regulatory request in the next.

         "In reviewing the denial of a motion to reopen, this court applies a highly deferential abuse-of-discretion standard, regardless of the basis of the alien's request for relief." Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (citation omitted). We "must affirm the BIA's decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach." Id. (citation omitted). Additionally, "motions to reopen deportation proceedings are 'disfavored, ' and the moving party bears a 'heavy burden.'"[1]

         A statutory motion to reopen must be filed "within 90 days of the date of entry of a final administrative order of removal, " subject to exceptions not relevant here. 8 U.S.C. § 1229a(c)(7)(C)(i). Gonzalez-Cantu concedes that her motion, which she filed more than fourteen years after her removal order became final, was untimely under the terms of the statute. But she contends that the BIA should have equitably tolled the limitations period.

         Motions to reopen under § 1229a are subject to equitable tolling. Lugo- Resendez, 831 F.3d at 343-44. The BIA must apply the same tolling standard that we use in other contexts. Id. at 344. Under that standard, "a litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some ...


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