for Review of an Order of the Board of Immigration Appeals
HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
E. SMITH, Circuit Judge:
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.
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.
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 She contended that the removal order was no
longer valid in light of United States v.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.
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.
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.
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.
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
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.
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 ...