Summary
The Fifth Circuit denied consolidated petitions for review of the Board of Immigration Appeals’ denials of motions to reopen and reconsider removal proceedings. The court held that the petitioner’s nineteen-year-delayed motion to reopen was untimely and that he failed to establish the due diligence required for equitable tolling. The court therefore found no abuse of discretion by the Board.
Topics
Practice areas
Questions Presented
- Whether the Board abused its discretion by determining that Rosa Arevalo's nineteen-years-late motion to reopen was not subject to equitable tolling.
- Whether the Board abused its discretion by denying Rosa Arevalo's motion for reconsideration.
Holdings
- The Board did not abuse its discretion in finding that Rosa Arevalo failed to establish the due diligence required for equitable tolling of the deadline to file his motion to reopen.
- The Board did not abuse its discretion in denying Rosa Arevalo's motion for reconsideration.
Key quotations
“But the deadline for filing a motion to reopen is subject to equitable tolling if the movant establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”” (3)
“The first element requires the litigant to establish that he pursued his rights with reasonable diligence, not maximum feasible diligence, and the second element requires the litigant to establish that an extraordinary circumstance beyond his control prevented him from complying with the applicable deadline.” (3)
“Because the Board did not abuse its discretion in holding that Rosa Arevalo failed to diligently pursue his rights, we need not consider whether extraordinary circumstances prevented him from timely filing the motion.” (5)
Factual background
Oscar Rene Rosa Arevalo, a native and citizen of Guatemala, was convicted of possession of a controlled substance in Illinois and was removed to Guatemala in 2004 after immigration proceedings based on that conviction. In 2023, he learned that an Illinois statute allowed petitions to vacate convictions having potential federal immigration consequences, and he obtained vacatur of his conviction in December 2023. He moved to reopen his removal proceedings in January 2024, but the Board found the motion untimely and declined to apply equitable tolling because he failed to show due diligence.
Procedural history
Rosa Arevalo was removed to Guatemala in 2004 after the immigration judge determined that his controlled-substance possession conviction made him ineligible for cancellation of removal, and the Board dismissed his appeal. After an Illinois court vacated that conviction in December 2023, he moved to reopen his removal proceedings and moved for reconsideration. The Board denied both motions, concluding that the motion to reopen was untimely and not subject to equitable tolling. The Fifth Circuit denied both petitions for review.