     Case: 15-60064      Document: 00514061537         Page: 1    Date Filed: 07/06/2017




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

                                    No. 15-60064                                 FILED
                                  Summary Calendar                            July 6, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
BENITO BARAJAS-FLORES,

                                                 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. A026 556 982


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Benito Barajas-Flores, a Mexican citizen, became a lawful permanent
resident in 1982. In 2003, Barajas-Flores was removed from the United States
because he had been convicted of a controlled substance violation, an
aggravated felony.        Barajas-Flores filed a motion to reopen with the
Immigration Judge (IJ) in 2014 arguing that under the Supreme Court’s
decision in Lopez v. Gonzalez, 549 U.S. 47 (2006), which was handed down after
he was deported, his drug conviction was not an aggravated felony, meaning

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60064

that he was eligible for cancellation of removal. Moreover, he contended that
under Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012), also decided after
his removal, the IJ had jurisdiction to consider whether the 90-day period for
filing a motion to reopen should be equitably tolled despite that he had already
departed the United States through deportation. The IJ denied the motion to
reopen citing the regulatory bar on considering untimely motions to reopen
filed by aliens who have been removed from the United States.                The
IJ therefore concluded that it lacked jurisdiction to consider the motion.
Barajas-Flores appealed to the Board of Immigration Appeals (BIA). The BIA
dismissed the appeal. The BIA determined that the motion was untimely and
that Barajas-Flores failed to establish that any of the statutory or regulatory
exceptions applied to the time limitation. The BIA further concluded that
Barajas-Flores’s departure barred consideration of the motion sua sponte.
Barajas-Flores filed a timely petition for review from this order.           The
proceedings were stayed pending our decision in Lugo-Resendez v. Lynch, 831
F.3d 337 (5th Cir. 2016).
      We review the denial of a motion to reopen applying the highly
deferential abuse-of-discretion standard. Lugo-Resendez, 831 F.3d at 340. The
BIA abuses its discretion when its decision “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. “ Id. (internal quotation marks and citation
omitted).
      A petitioner who “seek[s] to reopen his removal proceedings has two
options: (1) he can invoke the court’s regulatory power to sua sponte reopen
proceedings under either 8 C.F.R. § 1003.23(b) or 8 C.F. R. § 1003.2(a); or (2) he
can invoke his statutory right to reopen proceedings under § 1229a(c)(7).”
Lugo-Resendez, 831 F.3d at 340-41. Section 1229a(c)(7), provides an alien the

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                                 No. 15-60064

right to file one motion to reopen his removal proceedings. See id. at 339. The
motion must be filed within 90 days after the date of entry of the final order of
removal. See § 1229a(c)(7)(C)(i). We recently held, however, that statutory
motions to reopen are subject to equitable tolling. Lugo-Resendez, 831 F.3d at
343-44. If an alien’s motion to reopen is not timely filed, it is deemed a
regulatory motion because the alien’s only available avenue for relief is to ask
the IJ or the BIA to invoke its regulatory authority to sua sponte reopen the
removal proceedings. See id. at 342.
      The Attorney General has promulgated two different “departure bars”—
one that applies to the Immigration Court and one that applies to the BIA—
that prevent aliens who have departed the United States from filing either type
of motion to reopen. See Toora v. Holder, 603 F.3d 282, 287-88 (5th Cir. 2010)
(applying § 1003.23(b)(1) concerning IJ reopening); Ovalles v. Holder, 577 F.3d
288, 296-97 (5th Cir. 2009) (applying § 1003.2(d) concerning BIA reopening).
We have upheld the application of the departure bar to regulatory motions to
reopen and invalidated the application of the departure to statutory motions
to reopen. Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003),
330 F.3d at 675-76; Garcia-Carias, 697 F.3d at 264.
      Barajas-Flores contends that the BIA erred in determining that the
IJ was without jurisdiction to consider the motion to reopen and in
recharacterizing the motion as a request for regulatory, sua sponte reopening
rather than a statutory reopening. He asserts that the regulatory bar on
reopening proceedings after an alien has been deported does not apply where,
as here, the alien seeks statutory reopening of the proceedings based on a
change in the law that occurred after the deadline for filing a motion to reopen.
      The Government argues that the BIA properly denied Barajas-Flores’s
motion to reopen as untimely because Barajas-Flores did not file his motion to
reopen until eleven years after the expiration of the 90-day time limit for

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motions to reopen.     The Government also argues that the BIA properly
concluded that it lacked the authority to consider Barajas-Flores’s request for
sua sponte reopening pursuant to the post-departure bar.
      In Lugo-Resendez, Lugo-Resendez filed a motion to reopen his removal
proceedings subsequent to the Supreme Court’s decision in Lopez, which was
decided after he was deported in 2003, on the basis that his drug conviction
was not an aggravated felony, meaning that he was eligible for cancellation of
removal. 831 F.3d at 339. Lugo-Resendez filed his motion to reopen in 2014
after he became aware of Lopez and Garcia-Carias. Id. at 339-40. Lugo-
Resendez argued that his motion to reopen was a statutory motion to reopen
because the motion was timely under the principles of equitable tolling. Id. at
342-43. The Government argued that because the motion was untimely, the
only relief available was under the BIA’s sua sponte regulatory authority,
which was precluded by the departure bar. Id. at 342. We found that the IJ
had skipped a step in the timeliness analysis by failing to analyze whether the
deadline should be equitably tolled, and as a result, determined there was an
abuse of discretion. Id. at 343. We did not address whether the petitioner was
entitled to equitable tolling and instead remanded the case because the record
was insufficiently developed to determine whether the petitioner had met the
standard and the parties failed to discuss the relevant facts in sufficient detail.
Id. at 344. As in Lugo-Resendez, the BIA in the instant case skipped a step in
the timeliness analysis by failing to analyze whether the deadline should be
equitably tolled. Accordingly, we hold that the BIA abused its discretion in
failing to address equitable tolling, GRANT the petition for review, and
REMAND to the BIA for consideration of whether equitable tolling is
appropriate. See id. at 344-45.




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