                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     January 11, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-61152
                            Summary Calendar
                        _______________________


                        BORIS O. MEDINA-HERRERA,

                                                                Petitioner,

                                  versus

               ALBERTO R. GONZALES, ATTORNEY GENERAL,

                                                                Respondent.



                   Petition for Review of an Order
                 of the Board of Immigration Appeals
                         BIA No. A29 331 428


Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

           Boris O. Medina-Herrera brings this petition for review,

challenging the Board of Immigration Appeals’s (“BIA’s”) dismissal

of his appeal from an immigration judge’s February 23, 2004, order

denying reopening and reconsideration.         Because we conclude that

the BIA did not engage in impermissible fact finding, and that

Medina-Herrera failed to exercise due diligence in preserving his

rights, his petition is DENIED.

                                BACKGROUND


     *
            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opinion should not be published and is not precedent except under the limited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.
          Medina-Herrera is a native and citizen of Guatemala who

entered the United States as a nonimmigrant with permission to

remain until April 5, 1990.      He did not depart as required, and an

immigration judge ultimately ordered him deported following a

hearing conducted in absentia on October 30, 1990.

          On September 11, 1998, Medina-Herrera filed a motion to

reopen pursuant to § 203 of the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”).      On December 17, 1999, an immigra-

tion judge denied Medina-Herrera’s motion.

          On February 5, 2004, Medina-Herrera again moved to have

his case reopened and reconsidered. He argued that he had received

ineffective assistance of counsel in preparing his application for

NACARA relief, and that as a result, the statute of limitations to

file a motion to reopen should have been equitably tolled.              The

immigration judge held that ineffective assistance of counsel did

not provide a basis for equitable tolling, and denied Medina-

Herrera’s motion as untimely on February 23, 2004.       Medina-Herrera

appealed to the BIA.

          The    BIA    then   dismissed   Medina-Herrera’s    appeal    on

November 18, 2004, holding that Medina-Herrera had failed to

establish that he was entitled to equitable tolling.               The BIA

concluded that even if his counsel rendered ineffective assistance,

Medina-Herrera    had    not   exercised   due   diligence    in   seeking

reconsideration of the immigration judge’s decision.               Medina-



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Herrera filed a timely petition for review, and this court has

jurisdiction.

                                 DISCUSSION

            On a petition for review of a BIA decision, we review the

BIA’s rulings of law de novo.          Lopez-Gomez v. Ashcroft, 263 F.3d

442, 444 (5th Cir. 2001).       We review the BIA’s findings of fact for

substantial evidence.      Tesfamichael v. Gonzales, 411 F.3d 169, 175

(5th Cir. 2005).

            Medina-Herrera argues that the BIA violated its own

regulations in determining that he failed to exercise due diligence

in seeking reconsideration.       On an appeal from the decision of an

immigration     judge,    the   BIA    may     review    “questions       of     law,

discretion, and judgment and all other issues in appeals from

decisions     of   immigration        judges     de     novo.”        8        C.F.R.

§ 1003.1(d)(3)(ii).       However, 8 C.F.R. § 1003.1(d)(3)(iv) states

that the BIA “will not engage in factfinding in the course of

deciding appeals.”       Medina-Herrera claims that the BIA engaged in

improper factfinding in making its determination that he did not

exercise due diligence over his claim. Respondent claims that such

a determination was a conclusion of law.

            As a general matter, courts have treated the determina-

tion whether a party has exercised due diligence for the purposes

of equitable tolling as a finding of fact.               See Migis v. Pearle

Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998)(discussing



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reasonable   diligence     in   the   context    of   a    Title    VII    claim).

However, in certain limited circumstances, other circuit courts

have recognized that the issue of whether a party exercised due

diligence may be a conclusion of law.                 See, e.g., Borges v.

Gonzales, 402 F.3d 398, 407 (3d Cir. 2005) (due diligence found as

a matter of law where facts were undisputed and record permitted

only one conclusion); Former Employees of Sonoco Prods. Co. v.

Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004)(same); Iavorski v. INS,

232 F.2d 124, 134 (2d Cir. 2000) (holding in first instance that an

alien seeking to reopen his case failed to exercise due diligence

and was not entitled to equitable tolling “as a matter of law”

where facts were undisputed).         We agree with the reasoning of the

aforementioned cases and conclude that where the facts on the

record are undisputed, and the result is inarguable, the BIA may

determine as a matter of law that a party failed to exercise due

diligence.

          Even accepting Medina-Herrera’s claims of ineffective

counsel as true, there is no disputing that he took more than four

years to bring a motion to reopen his case.                  In a formal bar

complaint he brought against his former counsel, Medina-Herrera

acknowledged   that   it   “seemed     odd”   that    he   had     not    received

communication from his attorney in years.             Still, Medina-Herrera

failed to take any action on his case.          These undisputed facts lead

only to the conclusion that Medina-Herrera failed to exercise due

diligence; the BIA made a permissible legal determination within

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the scope of its authority in dismissing Medina-Herrera’s appeal.

We agree with the Board’s holding, and Medina-Herrera’s petition

for review is therefore DENIED.




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