     Case: 17-60532      Document: 00514611659         Page: 1    Date Filed: 08/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 17-60532                         August 22, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
LORENZO CUETO-JIMENEZ,

                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A088 753 526


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Lorenzo Cueto-Jimenez, a native and citizen of Mexico, was charged with
being subject to removal and conceded removability. On June 6, 2012, Cueto-
Jimenez failed to appear and was ordered to be removed in absentia. On July
6, 2012, Cueto-Jimenez filed a motion to reopen his deportation proceedings
and rescind the in absentia deportation order, but the motion was denied. On
June 27, 2016, Cueto-Jimenez filed a second motion to reopen.                                  The


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-60532    Document: 00514611659     Page: 2   Date Filed: 08/22/2018


                                 No. 17-60532

immigration judge (IJ) denied the second motion to reopen as time and number
barred. The Board of Immigration Appeals (BIA) affirmed the IJ’s denial of
the second motion to reopen and dismissed the appeal. We review the BIA’s
order and consider the IJ’s decision only if it influenced the BIA’s
determination. Ojeda-Calderon v. Holder, 726 F.3d 669, 672 (5th Cir. 2013).
      In the petition for review, Cueto-Jimenez argues that the BIA erred in
affirming the IJ’s determination that his motion to reopen was time barred.
We review an immigration court’s denial of a motion to reopen removal
proceedings “under a highly deferential abuse-of-discretion standard.” Lugo-
Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016) (internal quotation marks
and citation omitted). In the instant case, the BIA affirmed the IJ’s conclusion
that equitable tolling was inappropriate because Cueto-Jimenez did not act
with due diligence by waiting more than four years following the in absentia
order to file the second motion to reopen. There is nothing in Cueto-Jimenez’s
affidavit that would compel reversal of the determination that his second
motion to reopen was time barred. See Penalva v. Sessions, 884 F.3d 521, 522,
525 (5th Cir. 2018); Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009). The BIA did not abuse its discretion in affirming the IJ’s determination
that the second motion to reopen was time barred.
      Given the foregoing, it is not necessary to address Cueto-Jimenez’s
argument that he established the extraordinary-circumstance prong for
equitable tolling or his assertion that equitable tolling should apply to the
numerical bar.
      PETITION FOR REVIEW DENIED.




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