     Case: 16-60804       Document: 00514383997         Page: 1    Date Filed: 03/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 16-60804
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         March 13, 2018
                                                                            Lyle W. Cayce
RAJESH KUMAR GAUTAM,                                                             Clerk


                                                  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. A087-993-681


                         ON PETITION FOR REHEARING
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Petitioner has filed a motion for panel rehearing.               We GRANT the
motion, withdraw the prior opinion, and substitute this opinion in its place.
       Rajesh Kumar Gautam, a native and citizen of India, failed to appear at
his December 13, 2010 removal hearing and was ordered removed from the
United States in absentia. In October 2015, Gautam moved to reopen his


       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                  No. 16-60804

removal proceedings and to rescind the in absentia removal order.               The
immigration judge determined that the motion was untimely and that neither
equitable tolling nor changed country conditions warranted reopening the
proceedings. The Board of Immigration Appeals (BIA) agreed and dismissed
Gautam’s ensuing appeal. Gautam now petitions this court for review of the
BIA’s order.
      Gautam argues that the BIA misunderstood his argument and abused
its discretion in not equitably tolling the 180-day limitations period that he
faced in filing the motion to rescind the in absentia order of removal. He
asserts that tolling was warranted because he relied on his brother, who
fraudulently misrepresented the steps in Gautam’s removal proceedings.
Gautam asserts that the limitations period should begin from the time he
consulted new counsel, who filed the motion to reopen.
      “[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 extraordinary circumstance stood in his way and
prevented timely filing.” Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir.
2016) (quoting Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750,
755 (2016)). Thus, irrespective of the question of diligence, a petitioner must
establish that some extraordinary circumstance prevented timely filing.
      In declining to equitably toll the limitations period, the BIA addressed
Gautam’s assertion that he had relied on his brother’s misrepresentation that
he would have the case transferred to a closer venue and would follow up with
him about the pending removal hearing. The BIA found that Gautam received
legal notice of his final hearing because he was personally served with the
December 2010 notice of hearing. Agreeing with the immigration judge that
Gautam failed sufficiently to establish that exceptional circumstances beyond



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                                  No. 16-60804

his control caused him to miss his hearing, the BIA held that Gautam was not
entitled to equitable tolling.
      Gautam also argues that the BIA erred in denying his motion to reopen
the removal proceedings because he offered evidence of changed conditions in
India. Gautam’s argument that he made a prima facie showing of eligibility
for asylum is inapposite. See I.N.S. v. Doherty, 502 U.S. 314, 323 (1992).
Moreover, as the BIA observed, Gautam’s evidence showed an ongoing pattern
of political violence that existed when he left India, such that he failed to show
a material change in country conditions. See Ramos-Lopez v. Lynch, 823 F.3d
1024, 1026 (5th Cir. 2016).
      For these reasons, the BIA upheld the immigration judge’s decision
declining to reopen removal proceedings. The BIA did not abuse its discretion
in so deciding.
      The petition for review is DENIED.




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