     Case: 17-60333       Document: 00514638501         Page: 1     Date Filed: 09/12/2018




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

                                     No. 17-60333                                FILED
                                   Summary Calendar                      September 12, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
PEDRO PABLO GUERRERO-LASPRILLA,

                                                  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. A040 249 969


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       For the reasons that follow, our court lacks jurisdiction to consider
whether Pedro Pablo Guerrero-Lasprilla acted with the required diligence to
warrant equitable tolling. Accordingly, his petition for review is dismissed.
       Guerrero, a native and citizen of Colombia, was admitted to the United
States in 1986 as an immigrant, but was removed in 1998 because of his felony
convictions of conspiracy to possess with intent to distribute cocaine base and


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 17-60333

possession with intent to distribute cocaine base. In September 2016, Guerrero
filed a motion to reopen, claiming the decision in Matter of Abdelghany, 26 I.
& N. Dec. 254 (BIA 2014), rendered him eligible to seek relief under former
Immigration and Nationality Act § 212(c); 8 U.S.C. § 1182(c) (repealed).
      The immigration judge (IJ) denied the motion to reopen, determining,
inter alia, the motion was not timely filed. The IJ determined Guerrero was
required by 8 C.F.R. § 1003.44(h) to have filed a special motion to seek relief
under former § 212(c) on or before 25 April 2005. The IJ concluded Guerrero
had not shown he diligently pursued his rights, given that he waited two years
to file his motion to reopen after his right to seek § 212(c) relief was explained
in 2014 by Matter of Abdelghany.
      On appeal, the Board of Immigration Appeals (BIA) adopted and
affirmed the IJ’s denial of the motion to reopen and dismissed the appeal.
Largely echoing the IJ’s conclusions, the BIA determined “[t]he motion to
reopen was untimely because it was not filed within 90 days of the final
administrative decision”. The BIA upheld the IJ’s conclusion that equitable
tolling did not apply.     Further, the BIA specifically rejected Guerrero’s
contention that he could not have filed a motion to reopen prior to Lugo-
Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016). Finally, the BIA determined
that Guerrero’s action did not warrant sua sponte reopening of the proceedings.
      Guerrero contends the BIA abused its discretion in deciding not to sua
sponte reopen his immigration proceeding. Because this issue is raised for the
first time in Guerrero’s reply brief, we need not consider it. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). In any event, we lack jurisdiction
to review the BIA’s decision not to sua sponte reopen a proceeding.           See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248–50 (5th Cir. 2004).




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                                  No. 17-60333

      Challenging the determination he was not entitled to equitable tolling,
Guerrero asserts he could not have moved to reopen before Lugo-Resendez
because any prior-filed motion would have been procedurally barred. He
contends he was diligent by filing the motion to reopen 40 days after the Lugo-
Resendez decision.
      In our court, “the deadline for filing a motion to reopen under
§ 1229a(c)(7) is subject to equitable tolling”. Lugo-Resendez, 831 F.3d at 343–
44. Equitable tolling is warranted only if the litigant establishes “(1) he has
been pursuing his rights diligently, and (2) . . . some extraordinary
circumstance stood in his way and prevented timely filing”. Id. at 344 (internal
quotation marks and citation omitted).
      Our court determined recently that, whether an alien acted diligently in
attempting to reopen removal proceedings for purposes of equitable tolling is a
factual question. See Penalva v. Sessions, 884 F.3d 521, 525 (5th Cir. 2018).
Because Guerrero was removable on account of criminal convictions that
qualified as aggravated felonies as well as violations of laws relating to
controlled substances, we lack jurisdiction to consider the factual question of
whether he acted with the requisite diligence to warrant equitable tolling. See
8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i); 8 U.S.C. § 1252(a)(2)(C); Penalva, 884 F.3d
at 525–26.
      The decision for the above discussed equitable-tolling issue is dispositive
of the instant petition for review. Therefore we need not consider Guerrero’s
contention that the BIA erred in determining he was required to file a special
motion to seek relief. See Guevara v. Gonzales, 450 F.3d 173, 176 n.4 (5th Cir.
2006).
      DISMISSED.




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