          Case: 16-12253   Date Filed: 04/07/2017   Page: 1 of 6


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-12253
                       Non-Argument Calendar
                     ________________________

                      Agency No. A097-625-806



JUAN PEREZ-PABLO,
TOMASA CALMO-CARRILLO,
ROLANDO PEREZ-CALMO,
LEOVEL PEREZ-CALMO,
HERLINDA PEREZ-CALMO,

                                                                    Petitioners,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                     ________________________

                Petition for Review of a Decision of the
                     Board of Immigration Appeals
                      ________________________

                            (April 7, 2017)
              Case: 16-12253     Date Filed: 04/07/2017    Page: 2 of 6


Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Juan Perez-Pablo, Tomasa Calmo-Carrillo, Rolando Perez-Calmo, Leovel

Perez-Calmo, and Herlinda Perez-Calmo (“the petitioners”), proceeding with

counsel, seek review of the Board of Immigration Appeals’ (“BIA”) final order

affirming the Immigration Judge’s (“IJ”) denial of their motion to reopen in

absentia removal proceedings, pursuant to the Immigration and Nationality Act

(“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). On appeal, the petitioners

argue that the BIA abused its discretion in affirming the IJ’s denial of the

petitioners’ motion to reopen, where they submitted sworn affidavits and an article

establishing that a hurricane prevented their appearance at the September 14, 2004,

removal hearing, and where, despite their attorney’s specific instruction to avoid

their case, they exercised due diligence in pursuing their case by seeking counsel

immediately after the hurricane had passed. The petitioners also argue that the

BIA abused its discretion in affirming the IJ’s declination to equitably toll the 180-

day filing deadline due to their failure to diligently pursue their case, where they

pursued their rights diligently, but were held back due to the hurricane’s wreckage

and their attorney’s ineffective assistance of counsel, which were both

extraordinary circumstances out of their control.




                                           2
              Case: 16-12253     Date Filed: 04/07/2017    Page: 3 of 6


      We review the BIA’s decision as the final judgment, unless and to the extent

the BIA expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577

F.3d 1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s decision, we

review the decisions of both the BIA and the IJ. Id. We will not review issues the

BIA declined to address. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.

2016). Here, the BIA issued its own decision, but to the extent that the BIA agreed

with the IJ’s findings, we review both decisions. Kazemzadeh, 577 F.3d at 1350.

      We review the denial of a motion to reopen an immigration proceeding for

an abuse of discretion, under which we will only determine whether the BIA

exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen., 568

F.3d 1252, 1256 (11th Cir. 2009). The appellant bears a heavy burden in proving

arbitrariness or capriciousness because motions to reopen in the context of removal

proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316,

1319 (11th Cir. 2009).

      Under INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), when an alien fails

to attend his removal proceeding, he will be ordered removed in absentia so long

as he is removable and was provided with written notice of the proceeding. INA

§ 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The alien may only seek rescission of

the in absentia removal order by filing a motion to reopen removal proceedings

within 180 days after the order of removal was entered, and by demonstrating that


                                          3
              Case: 16-12253     Date Filed: 04/07/2017   Page: 4 of 6


he failed to appear due to “extraordinary circumstances.” Jiang, 568 F.3d at 1256;

see INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i) (citing “exceptional

circumstances”). The INA’s 180-day deadline for filing a motion to reopen an in

absentia removal order is a non-jurisdictional claim-processing rule, subject to

equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-65 & n.4

(11th Cir. 2013) (en banc). To prevail on an equitable tolling claim, the appellant

must show that: (1) he has pursued his rights diligently, and (2) some extraordinary

circumstance stood in his way. See id. at 1363 n.5.

      The BIA did not abuse its discretion by affirming the IJ’s denial of the

petitioners’ motion to reopen. The petitioners do not dispute receiving the notice

of removal and the in absentia removal order. Because the petitioners did not file

their motion to reopen until September 25, 2015, just over 11 years after the IJ’s

September 14, 2004, final removal decision, their motion was untimely and they

needed to satisfy the equitable tolling requirements. INA § 240(b)(5)(C)(i), 8

U.S.C. § 1229a(b)(5)(C)(i); Jiang, 568 F.3d at 1256; Avila-Santoyo, 713 F.3d at

1362-65 & n.4.

      The BIA properly affirmed the IJ’s declination to equitably toll the 180-day

deadline for the petitioners’ motion to reopen. The BIA did not exercise its

discretion in an arbitrary or capricious manner where it reasonably concluded from

the evidence that the petitioners did not exercise due diligence in pursuing their


                                          4
              Case: 16-12253     Date Filed: 04/07/2017    Page: 5 of 6


rights. Jiang, 568 F.3d at 1256; Zhang, 572 F.3d at 1319. According to Perez-

Pablo’s and Calmo-Carrillo’s sworn declarations, from the time they consulted

Milano in late September 2004 until their move to California in 2014, they

specifically avoided contacting either the immigration court or alternative counsel

due to their fear of deportation. The record demonstrates no other efforts by the

petitioners in pursuing their case prior to 2014. Thus, the BIA was within its

discretion to conclude that the petitioners failed to show the requisite diligence for

equitable tolling. Avila-Santoyo, 713 F.3d at 1363 n.5.

      The petitioners also argue that the BIA erred in adopting the IJ’s summary

conclusion that they failed to comply with Matter of Lozada, 19 I&N Dec. 637

(BIA 1988), as to their ineffective assistance of counsel argument. However,

because the BIA did not adopt this conclusion, but rather concluded that the due-

diligence issue was dispositive, we need not review the IJ’s conclusion on this

matter. Gonzalez, 820 F.3d at 403. Nevertheless, because the petitioners failed to

show entitlement to equitable tolling, we need not consider the merits of their

motion to reopen on ineffective assistance of counsel grounds. See Ruiz-Turcios v.

U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013) (concluding that entitlement to

equitable tolling must be satisfied before consideration of the merits of the claim

underlying the motion to reopen).




                                           5
               Case: 16-12253   Date Filed: 04/07/2017   Page: 6 of 6


      Upon review of the record and consideration of the parties’ briefs, we deny

the petitioners’ petition.

      PETITION DENIED.




                                        6
