     Case: 14-60865     Document: 00513613847    Page: 1   Date Filed: 07/28/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                  No. 14-60865                           FILED
                                                                     July 28, 2016

SERGIO LUGO-RESENDEZ,
                                                                    Lyle W. Cayce
                                                                         Clerk

               Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

               Respondent




                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Petitioner Sergio Lugo-Resendez filed a motion to reopen his removal
proceedings in the Immigration Court. The Immigration Judge denied his
motion as untimely, and the Board of Immigration Appeals affirmed. We
GRANT Lugo-Resendez’s petition for review, and REMAND for further
proceedings.
                                        I.
      Petitioner Sergio Lugo-Resendez, a citizen of Mexico, was admitted to
the United States as a lawful permanent resident in August 1973.                        In
December 2002, he pleaded guilty in Texas state court to one felony count of
“possession of controlled substance less than one gram.”         He received a
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                                      No. 14-60865
sentence of two years in prison, which was suspended, and five years of
community supervision. In February 2003, the Government initiated removal
proceedings against Lugo-Resendez. The Notice to Appear alleged that he was
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his state conviction
qualified as an “aggravated felony.” Lugo-Resendez did not challenge this
allegation, and an order of removal was entered in March 2003.
       In July 2014, Lugo-Resendez filed a motion to reopen his removal
proceedings in the Immigration Court under 8 U.S.C. § 1229a(c)(7).                     This
statute “guarantees to each alien the right to file ‘one motion to reopen
proceedings.’” 1 The Supreme Court has explained that “[a] motion to reopen is
a form of procedural relief that ‘asks the Board to change its decision in light
of newly discovered evidence or a change in circumstances since the hearing.’” 2
In his motion, Lugo-Resendez asserted that there had been “a change in
circumstances since [his] hearing.” In 2006, the Supreme Court held in Lopez
v. Gonzales that simple possession does not qualify as an “aggravated felony”
under the Immigration and Nationality Act (“INA”). 3 Lugo-Resendez urged
that Lopez invalidated the basis for his removal because it resolved that his
Texas conviction for “possession of controlled substance less than one gram”
did not qualify as an “aggravated felony.”
       The Government responded that Lugo-Resendez’s motion to reopen was
untimely. A motion to reopen under 8 U.S.C. § 1229a(c)(7) must “be filed
within 90 days of the date of entry of a final administrative order of removal.” 4
The Government argued that Lugo-Resendez’s motion to reopen—filed more



       1 Dada v. Mukasey, 554 U.S. 1, 15 (2008) (quoting 8 U.S.C. § 1229a(c)(7)(A)); see also
Kucana v. Holder, 558 U.S. 233, 240 n.5 (2010).
       2 Dada, 554 U.S. at 12 (quoting 1 Charles Gordon, Stanley Mailman & Stephen Yale-

Loehr, Immigration Law and Procedure § 3.05[8][c] (rev. ed. 2007)).
       3 549 U.S. 47 (2006).
       4 8 U.S.C. § 1229a(c)(7)(C)(i).

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                                   No. 14-60865
than eleven years after the entry of the March 2003 order of removal—clearly
did not comply with this statutory deadline. Lugo-Resendez anticipated this
argument and conceded in his motion to reopen that the 90-day deadline had
passed—but he insisted that he was entitled to equitable tolling because of
another change in the law. Under 8 C.F.R. § 1003.23(b)(1), “[a] motion to
reopen or to reconsider shall not be made [in the Immigration Court] by or on
behalf of a person who is the subject of removal, deportation, or exclusion
proceedings subsequent to his or her departure from the United States.” The
Board of Immigration Appeals (“BIA”) has long held that this regulation
divests the Immigration Court of jurisdiction to “entertain motions filed by
aliens who ha[ve] departed the United States.” 5 But in 2012, we held in
Garcia-Carias v. Holder that an alien has the right to file a motion to reopen
under § 1229a(c)(7) even if he has departed the United States. 6 Lugo-Resendez
maintained that—because he departed the United States in 2003—he was
unable to file a motion to reopen until this Court’s decision in Garcia-Carias.
      In an affidavit, Lugo-Resendez further explained that he did not become
aware of Garcia-Carias until May 2014, when he “heard about a man that was
a lawful permanent residen[t] who had a drug conviction, but . . . was allowed
to apply for cancellation of removal because a new law made it possible even
though he had already been deported.” Lugo-Resendez asked his daughter to
visit an immigration attorney on his behalf and inquire about this new law;
she did so, and informed him that it was possible to reopen his case. Once
Lugo-Resendez received this news, he “immediately gathered the money and
asked the immigration attorney . . . to file [his] request to reopen.”
      The Immigration Judge (“IJ”) denied Lugo-Resendez’s motion to reopen.


      5    See Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 648-49 (B.I.A. 2008)
(collecting cases).
        6 697 F.3d 257 (5th Cir. 2012).

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                                    No. 14-60865
Reviewing this Court’s case law, the IJ concluded that Garcia-Carias only
applies “where the motion to reopen falls within the statutory specifications.”
That is, “Garcia-Carias does not reach motions to reopen that are untimely
filed or otherwise disqualified under the statutory scheme.” Adopting the
Government’s position, the IJ determined that Lugo-Resendez’s motion to
reopen was “untimely” because it was filed more than 90 days after the March
2003 order of removal. As a result, the IJ concluded that the Immigration
Court lacked jurisdiction to consider it because § 1003.23(b)(1) applied. Lugo-
Resendez appealed to the BIA. In his brief, he argued that the IJ misread
Garcia-Carias.     He also urged that the IJ ignored his equitable tolling
argument. The BIA affirmed the IJ “without opinion” in a single-member,
summary decision. Lugo-Resendez timely filed a petition for review.
                                          II.
      “We have authority to review only an order of the BIA, but our task is
effectively to review the IJ’s decision when the BIA has explicitly adopted it.” 7
      “This Court reviews the denial of a motion to reopen ‘under a highly
deferential abuse-of-discretion standard.’       The Board abuses its discretion
when it issues a decision that is capricious, irrational, utterly without
foundation in the evidence, based on legally erroneous interpretations of
statutes or regulations, or based on unexplained departures from regulations
or established policies.” 8
                                         III.
                                          A.
      We start with some background on motions to reopen. An alien seeking
to reopen his removal proceedings has two options: (1) he can invoke the court’s


      7  Bouchikhi v. Holder, 676 F.3d 173, 176 (5th Cir. 2012) (per curiam).
      8   Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (per curiam)
(citation omitted) (quoting Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)).
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                                       No. 14-60865
regulatory power to sua sponte reopen proceedings under either 8 C.F.R.
§ 1003.23(b) or 8 C.F.R. § 1003.2(a); 9 or (2) he can invoke his statutory right to
reopen proceedings under 8 U.S.C. § 1229a(c)(7). The Attorney General has
promulgated two different regulations—one that applies to the Immigration
Court 10 and one that applies to the BIA 11—that prevent aliens who have
departed the United States from filing either type of motion to reopen. As
interpreted by the BIA, 12 these regulations (collectively referred to as the
“departure bar”) categorically strip the BIA and the Immigration Court of
jurisdiction to consider motions to reopen filed by departed aliens.
        This Court has adjudicated two significant challenges to the departure
bar.    In Navarro-Miranda v. Ashcroft, 13 we addressed a challenge to the
departure bar as applied to regulatory motions to sua sponte reopen
proceedings. Navarro argued that the BIA had misinterpreted the departure
bar as a jurisdictional limit on its power to sua sponte reopen proceedings
under § 1003.2(a). That is, he argued that the BIA had incorrectly interpreted
the interplay of two of its own regulations. 14 After examining the regulations
closely, we concluded that the BIA’s interpretation of the two regulations was
reasonable and upheld the application of the departure bar to regulatory
motions to reopen. 15
        In Garcia-Carias v. Holder, 16 this Court considered a challenge to the
departure bar as applied to statutory motions to reopen. Garcia argued that


        9 The Immigration Court’s regulatory authority is governed by § 1003.23(b) while the
BIA’s regulatory authority is governed by § 1003.2(a).
        10 8 C.F.R. § 1003.23(b)(1).
        11 Id. § 1003.2(d).
        12 See Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 648-49 (B.I.A. 2008).
        13 330 F.3d 672 (5th Cir. 2003).
        14 Id. at 675 (“[T]he Board has concluded that § [100]3.2(d) trumps the power granted

by § [100]3.2(a) where the alien has been deported; Navarro challenges this interpretation.”).
        15 See id. at 675-76.
        16 697 F.3d 257 (5th Cir. 2012).

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                                      No. 14-60865
the departure bar represented an unreasonable interpretation of 8 U.S.C.
§ 1229a(c)(7). This time, we agreed and invalidated the departure bar as
applied to statutory motions to reopen. Applying the Chevron framework, we
explained that § 1229a(c)(7)—which provides that “[a]n alien may file one
motion to reopen proceedings under this section”—“unambiguously gives
aliens a right to file a motion to reopen regardless of whether they have left
the United States.” 17 Accordingly, “we h[e]ld that the Board’s application of
the departure regulation to statutory motions to reopen [wa]s invalid under
Chevron’s first step as the statute plainly does not impose a general physical
presence requirement.” 18
                                            B.
      Lugo-Resendez argues that—under Garcia-Carias—the IJ should not
have applied the departure bar because he filed a statutory motion to reopen.
The Government responds that Garcia-Carias is inapposite.                     Rather, the
Government asserts that our decision in Ovalles v. Holder is controlling. 19
Ovalles, like Garcia, challenged the departure bar as applied to statutory
motions to reopen. As support, he relied on a Fourth Circuit decision that
invalidated the departure bar for the same reasons as Garcia-Carias. 20 In
contrast to Garcia-Carias, however, this Court did not resolve Ovalles’s
statutory argument. “Without passing judgment on the merits of the Fourth
Circuit’s decision,” we noted that Ovalles’s motion was “facially and concededly
untimely.” Consequently, we concluded that Ovalles could not file a motion to
reopen under § 1229a(c)(7) because he had failed to comply with the statutory
requirements. 21 Instead, he was limited to filing a regulatory motion to sua


      17 Id. at 263.
      18 Id. at 264.
      19 577 F.3d 288 (5th Cir. 2009) (per curiam).
      20 See id. at 293-95 (discussing William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)).
      21 See id. at 295-96.

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                                      No. 14-60865
sponte reopen proceedings, which meant that—under Navarro-Miranda—the
BIA acted reasonably in applying the departure bar. 22
       In Garcia-Carias, this Court explicitly distinguished Ovalles.                   The
Garcia-Carias panel explained that Ovalles was “not controlling” because
Ovalles’s motion “was untimely.” 23           By contrast, the motion reviewed in
Garcia-Carias might have been timely. Even though Garcia filed his motion
to reopen more than five years after his removal, 24 we declined to decide
whether it was timely because the BIA had not addressed the issue below. 25
This left open the possibility that the BIA might accept Garcia’s contention
that his motion was timely either because “he filed it ‘less than ninety days
and within a reasonable time of when he first became aware of the possibility
of seeking to reopen his immigration proceedings pursuant to [Lopez]’” or
because “equitable tolling rendered the motion timely.” 26 In this case, the
Government contends the facts are different because the BIA did address
timeliness—and concluded that Lugo-Resendez’s motion was untimely.
Therefore, the Government urges us to apply Ovalles, not Garcia-Carias.
                                             C.
       The parties’ dispute reduces to the question of whether Lugo-Resendez
filed a statutory motion to reopen or a regulatory motion to reopen. If Lugo-
Resendez filed a statutory motion to reopen, then Garcia-Carias prevents the
application of the departure bar. But if Lugo-Resendez filed a regulatory
motion to reopen, then Navarro-Miranda allows the application of the




       22     See id. at 296-97.
       23     697 F.3d at 265.
           24 Compare id. at 259 (“Garcia was removed from the United States in November 2005

. . . .”), with id. at 260 (“On December 27, 2010, Garcia filed a motion to reopen his
proceedings with the Immigration Judge.”).
           25 See id. at 261 n.1.
           26 Id. at 260 (alteration in original).

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                                        No. 14-60865
departure bar. Contrary to Lugo-Resendez’s suggestion, this question cannot
be answered simply by looking at how he framed or labeled his motion to
reopen. Under Ovalles, a motion to reopen that does not comply with the
requirements of § 1229a(c)(7) must be construed as a regulatory motion to
reopen—even if it is labeled as a statutory motion to reopen. Here, the only
disputed requirement is timeliness.                The Government has steadfastly
maintained throughout this litigation that Lugo-Resendez’s motion is untimely
because it was filed more than 90 days after the March 2003 order of removal.
As a result, it presses this Court to construe Lugo-Resendez’s motion as a
regulatory motion to reopen and apply Navarro-Miranda.
      The Government’s position, however, is based upon a faulty premise.
Although Lugo-Resendez’s motion to reopen was filed more than 90 days after
the March 2003 order of removal, this does not mean that it was untimely.
Ovalles may seem to suggest that compliance with the deadline is conclusive,
but the alien in Ovalles “conceded[]” that his motion to reopen was untimely. 27
Lugo-Resendez makes no such concession. Rather, he urges that he is entitled
to equitable tolling of the 90-day deadline. “If an alien qualifies for equitable
tolling of the time and/or numerical limitations on a motion to reopen, the
motion is treated as if it were the one the alien is statutorily entitled to file.” 28
That is, if Lugo-Resendez is entitled to equitable tolling, then his motion to
reopen was timely and he can invoke § 1229a(c)(7).                    The IJ, like the
Government, skipped a step of the analysis. Instead of acknowledging that the
90-day deadline had passed and then analyzing whether the deadline should
be equitably tolled, the IJ treated compliance with the deadline as conclusive.




      27   577 F.3d at 296; see also id. at 299.
      28   Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011).
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As four circuits have (at least implicitly) recognized, this was error. 29 We thus
conclude that the BIA abused its discretion by ignoring Lugo-Resendez’s
equitable tolling argument.
                                              D.
       We turn to the appropriate remedy for this error. Despite numerous
opportunities to do so, this Court has not decided whether equitable tolling
applies to the 90-day deadline for filing a motion to reopen under § 1229a(c)(7).
Until recently, “[i]n this circuit, an alien’s request for equitable tolling . . . [wa]s
construed as an invitation for the BIA to exercise its discretion to reopen the
removal proceeding sua sponte.” 30             And because “the BIA has complete
discretion in determining whether to reopen sua sponte under 8 C.F.R.
§ 1003.2(a),” this Court’s practice was to dismiss such a recharacterized
request for lack of jurisdiction. 31 In Mata v. Lynch, the Supreme Court rejected
this jurisdictional rule and instructed this Court to stop recharacterizing
requests to equitably toll the deadline for filing a statutory motion to reopen. 32
The Supreme Court, however, expressly left open the merits question of
“whether or when the INA allows the Board to equitably toll the 90-day period
to file a motion to reopen.” 33 But as the Court noted, 34 nine other circuits have
addressed this question. 35 Every single one has held that the deadline for filing


       29 See Bolieiro v. Holder, 731 F.3d 32, 38-40 (1st Cir. 2013); Ortega-Marroquin v.
Holder, 640 F.3d 814, 819-20 (8th Cir. 2011); Valdovinos-Lopez v. Att’y Gen., 628 F. App’x
817, 820 (3d Cir. 2015) (“The Government’s assumption is mistaken. If Valdovinos-Lopez is
entitled to equitable tolling, and if equitable tolling would make his motion to reopen a timely
one, then the motion would be statutory—not sua sponte.”); Lisboa v. Holder, 570 F. App’x
468, 473-74 (6th Cir. 2014).
       30 See Mata v. Holder, 558 F. App’x 366, 367 (5th Cir. 2014) (per curiam) (citing Ramos-

Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008)), rev’d, 135 S. Ct. 2150 (2015).
       31 Id.
       32 135 S. Ct. at 2155-56.
       33 See id. at 2155 n.3.
       34 See id. at 2154 n.1 (collecting cases).
       35 See Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013); Avila-Santoyo v. U.S. Att’y

Gen., 713 F.3d 1357, 1364 (11th Cir. 2013) (en banc) (per curiam); Alzaarir v. Att’y Gen., 639
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                                       No. 14-60865
a statutory motion to reopen is subject to equitable tolling in certain
circumstances. 36 We are persuaded by the reasoning of these cases and join
our sister circuits in holding that the deadline for filing a motion to reopen
under § 1229a(c)(7) is subject to equitable tolling.
       We decline, however, to determine whether the deadline should be
equitably tolled in the instant case. 37 The Supreme Court has instructed that
“the proper course, except in rare circumstances” is to “remand a case to an
agency for decision of a matter that statutes place primarily in agency
hands.” 38 This “ordinary remand rule” 39 has even more force here because
“[t]he record before the court is not sufficiently developed for us to engage in
the fact-intensive determination of whether equitable tolling is appropriate.” 40
Indeed, although the parties have briefed the applicable case law, they have
discussed the relevant facts only in passing. As a result, even putting aside
the “ordinary remand rule,” this appellate court is unable to properly analyze
whether equitable tolling is appropriate.
                                              E.
       On remand, we instruct the BIA to apply the same equitable tolling



F.3d 86, 90 (3d Cir. 2011) (per curiam); Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008);
Yuan Goa v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008); Hernandez-Moran v. Gonzales, 408
F.3d 496, 499-500 (8th Cir. 2005); Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002);
Socop-Gonzalez v. INS, 272 F.3d 1176, 1190-93 (9th Cir. 2001) (en banc); Iavorski v. INS, 232
F.3d 124, 129-33 (2d Cir. 2000) (Sotomayor, J.).
       36 See Mata, 135 S. Ct. at 2156 (“[A]ll appellate courts to have addressed the matter

have held that the Board may sometimes equitably toll the time limit for an alien’s motion
to reopen.”); Kuusk, 732 F.3d at 305.
       37 See, e.g., Bolieiro v. Holder, 731 F.3d 32, 40 (1st Cir. 2013) (remanding to allow the

BIA to consider in the first instance whether equitable tolling applied); Ortega-Marroquin v.
Holder, 640 F.3d 814, 820 (8th Cir. 2011) (same); Valdovinos-Lopez v. Att’y Gen., 628 F. App’x
817, 821 (3d Cir. 2015) (same); Lisboa v. Holder, 570 F. App’x 468, 474 (6th Cir. 2014) (same).
       38 INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting SEC v. Chenery Corp.,

332 U.S. 194, 196 (1947)).
       39 Gonzales v. Thomas, 547 U.S. 183, 187 (2006) (per curiam) (quoting Ventura, 537

U.S. at 18).
       40 Rivera v. Quarterman, 505 F.3d 349, 354 (5th Cir. 2007).

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                                       No. 14-60865
standard that this Court uses in other contexts. 41 Under this standard, “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.’” 42 The first element requires the litigant to establish
that he pursued his rights with “‘reasonable diligence,’ not ‘maximum feasible
diligence.’” 43 The second element requires the litigant to establish that an
“extraordinary circumstance” “beyond his control” prevented him from
complying with the applicable deadline. 44
       Apart from these general principles, the doctrine of “equitable tolling
does not lend itself to bright-line rules.” 45 “Courts must consider the individual
facts and circumstances of each case in determining whether equitable tolling
is appropriate.” 46     In a case such as this one, the BIA should give due
consideration to the reality that many departed aliens are poor, uneducated,
unskilled in the English language, and effectively unable to follow
developments in the American legal system—much less read and digest
complicated legal decisions. The BIA should also take care not to apply the
equitable tolling standard “too harshly” because denying an alien the
opportunity to seek cancellation of removal—when it is evident that the basis
for his removal is now invalid—“is a particularly serious matter.” 47 As the


       41  See Kuusk, 732 F.3d at 306 (“[E]ach of our sister circuits applies, in immigration
cases, its general standard for equitable tolling.”).
        42 Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016) (quoting

Holland v. Florida, 560 U.S. 631, 649 (2010)).
        43 Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting Holland, 560 U.S. at

653).
        44 In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (per curiam); see also Menominee

Indian Tribe, 136 S. Ct. at 756.
        45 Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
        46 Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam).
        47 Manning, 688 F.3d at 183-84 (quoting United States v. Wynn, 292 F.3d 226, 230 (5th

Cir. 2002)).
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Supreme Court recently reminded, the core purpose of equitable tolling is to
escape the “evils of archaic rigidity” and “to accord all the relief necessary to
correct . . . particular injustices.” 48 For now, we leave it to the BIA to determine
whether this case presents an injustice that warrants correction. 49
                                           IV.
      For the reasons stated above, we GRANT the petition for review and
REMAND to the BIA for further proceedings not inconsistent with this opinion.




      48  Holland, 560 U.S. at 650 (ellipsis in original) (quoting Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 248 (1944)).
       49 Because we grant Lugo-Resendez’s petition for review and remand to the BIA, we

need not reach his procedural complaints about the BIA’s decision. See Siwe v. Holder, 742
F.3d 603, 613-14 (5th Cir. 2014).
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