          United States Court of Appeals
                      For the First Circuit


No. 18-1138

                       JOSE ALBERTO MEDINA,

                           Petitioner,

                                v.

                      MATTHEW G. WHITAKER,
                    ACTING ATTORNEY GENERAL,*

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                    Lynch, Stahl, and Kayatta,
                          Circuit Judges.


     Randy Olen on brief for petitioner.
     Virginia L. Gordon, Trial Attorney, Civil Division, U.S.
Department of Justice, Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Leslie McKay, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.


                         January 22, 2019




     * Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
           STAHL, Circuit Judge.           Petitioner Jose Alberto Medina

("Medina"), a native and citizen of Guatemala, appeals an order of

the Board of Immigration Appeals ("BIA") denying his motion to

reopen his immigration proceedings as untimely.             Medina concedes

that the motion, which was filed nearly five years after the BIA

ordered his removal, fell outside the 90-day limitations period

set   forth     by    statute    and    regulation.       See    8   U.S.C.   §

1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).           However, he asks this

court to find that the BIA abused its discretion in rejecting his

equitable tolling argument which was meant to render his motion

timely.   For the following reasons, we deny the petition.

           I.        Factual and Procedural Background

           Medina      entered   the    United   States   near   San   Ysidro,

California, on February 5, 1993.          In the summer of 1993, he filed

an application for asylum with the Immigration and Naturalization

Service ("INS").1

           On May 23, 2007,2 INS began removal proceedings against

Medina.    In his written pleadings, Medina stated that he was

seeking asylum, withholding of removal, and relief under the



      1
      "The INS's enforcement functions have since been transferred
to the Department of Homeland Security (DHS) . . . ." Chedid v.
Holder, 573 F.3d 33, 34 n.1 (1st Cir. 2009).
      2The record does not explain why no action was taken for
fourteen years until April 10, 2007, when Medina was interviewed
by an INS agent.


                                       - 2 -
Convention Against Torture ("CAT").             In the alternative, he sought

voluntary departure.         He appeared with his first counsel, Lidia

Sanchez ("Sanchez"), before an Immigration Judge ("IJ") at a

hearing on October 10, 2007.3           At the hearing, counsel stated that

Medina sought asylum and withholding of removal, and in the

alternative, cancellation of removal, but expressly disavowed any

claim for relief under the CAT.             The IJ then continued the hearing

to July 7, 2008.

                 Because of multiple continuances, the hearing did not

resume until June 16, 2011.             On that date, Sanchez represented

that Medina conceded removability but still sought cancellation of

removal or, in the alternative, voluntary departure.                       Counsel

further stated that Medina wished to withdraw his applications for

asylum and withholding of removal.             The IJ asked counsel to affirm

that Medina understood that his withdrawal of those applications

would       be   with   prejudice,    and     she   affirmed   that   he   did    so

understand.          Thereafter,     Medina    provided   oral   testimony,      the

content of which is not relevant for resolving this appeal.                      No

other witnesses testified at the hearing.




        3
       The hearing was initially scheduled for October 3, 2007.
However, the IJ postponed it one week because the parties had
waited an hour-and-a-half for his counsel to arrive, and the "[IJ]
ha[d] too many cases on [that day] to wait for [Medina's]
attorney."


                                       - 3 -
            On October 6, 2011, the IJ denied Medina's application

for    cancellation   of   removal      but    granted   a    60-day   voluntary

departure period.     In short, the IJ found that Medina had failed

to corroborate his credible testimony and failed to demonstrate

that his removal would cause "exceptional and extremely unusual

hardship," as required to obtain cancellation of removal, for him

and his family, including two daughters who were U.S. citizens.

            On November 4, 2011, with the assistance of a new

attorney, Medina filed a notice of appeal with the BIA.                In a brief

dated March 7, 2012, Medina raised several claims, arguing that he

was unprepared for his prior hearing, that the IJ failed to provide

him an opportunity to show that corroborating evidence could not

be reasonably obtained, and that his first counsel's decision to

withdraw his asylum claim was "suspect."

            The BIA dismissed the appeal on October 23, 2012, finding

that    Medina   failed    to   meet    his    burden    of   "demonstrat[ing]

eligibility for cancellation of removal."                Because the 60-day

period for voluntary departure provided by the IJ had passed, the

BIA ordered Medina removed from the United States.                 Despite the

removal order, however, it appears that Medina neither left the

United States nor sought judicial review of the removal order.

            On August 21, 2017, with the assistance of his third

(and current) counsel, Medina filed a motion to reopen his removal

proceedings with the BIA.        In his brief, he alleged that Sanchez


                                       - 4 -
rendered ineffective assistance when she withdrew his applications

for asylum, withholding of removal, and protection under the CAT.

He theorized that this was because she had been unprepared to

"prosecute" his claims.          He further represented that he had

complied with the requirements of Matter of Lozada, 19 I&N Dec.

637 (BIA 1988) for filing a motion to motion to reopen.4           On that

basis,   Medina    sought   to   reopen    his   removal   proceedings,   or

alternatively, equitably toll the 90-day limitations period for

filing a motion to reopen.         In response, Sanchez submitted an

affidavit refuting Medina's allegations.

           On January 26, 2018, the BIA denied the motion to reopen

as untimely.      See 8 C.F.R. § 1003.2(c)(2).       It noted that Medina

had waited for nearly five years after the BIA originally ordered

him removed before filing the motion.        In addition, the BIA stated




     4 "Under Lozada, a valid motion to reopen based on ineffective
assistance of counsel must be supported by:
           (1) an affidavit explaining the petitioner's
           agreement   with   counsel    regarding    legal
           representation; (2) evidence that counsel has
           been   informed   of    the    allegations    of
           ineffective   assistance    and   has   had   an
           opportunity to respond; and (3) if it is
           asserted that counsel's handling of the case
           involved a violation of ethical or legal
           responsibilities, a complaint against the
           attorney filed with disciplinary authorities
           or, in the alternative, an explanation for why
           such a complaint has not been filed."
García v. Lynch, 821 F.3d 178, 180 n.2 (1st Cir. 2016).


                                   - 5 -
that Medina had not demonstrated that he "pursued his ineffective

assistance of counsel claim with the requisite due diligence[,]"

and thus the 90-day limitations period for filing such a motion

would not be equitably tolled.               The BIA further declined to

exercise     its     discretionary    authority     to     reopen   Medina's

proceedings    sua    sponte.    This    petition    for   judicial   review

followed.5

             II.   Analysis

             "Because a motion to reopen removal proceedings is a

disfavored tool, given the threat it poses to finality, the BIA

has a fair amount of latitude to grant or deny the motion and our

review is for abuse of discretion only."          Mazariegos v. Lynch, 790

F.3d 280, 285 (1st Cir. 2015) (citing Perez v. Holder, 740 F.3d

57, 61 (1st Cir. 2014)).        To prevail, the petitioner must show

that the "BIA committed an error of law or exercised its judgment

in an arbitrary, capricious, or irrational way."               Id. (quoting

Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)) (internal

quotation marks omitted).

             A motion to reopen "shall be filed within 90 days of the

date of entry of a final administrative order of removal."                8


     5 In his brief, Medina does not seek review of the BIA's
October 23, 2012 order dismissing his appeal of the IJ's decision.
Nor does he challenge the BIA's decision not to reopen his
proceedings sua sponte. Accordingly, our review is limited to the
BIA's January 26, 2018 denial of Medina's request for equitable
tolling. See Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007).


                                     - 6 -
U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R § 1003.2(c)(2).                 The

question of whether equitable tolling applies to motions to reopen

remains "an open question in the First Circuit."                     Pineda v.

Whitaker, 908 F.3d 836, 841 (1st Cir. 2018) (citing Xue Su Wang v.

Holder, 750 F.3d 87, 90 (1st Cir. 2014)).

            We   need   not   resolve    that   question    today,    however,

because "even assuming equitable tolling were available, we could

only reach the merits . . . if the Board abused its discretion in

finding that [petitioner] had not exercised the 'due diligence'

required by our case law."       Chedid v. Holder, 573 F.3d 33, 37 (1st

Cir. 2009); see also Pineda, 908 F.3d at 841.              We have also held

that "even if equitable tolling were available . . . the doctrine

should be 'sparingly invoked[.]'"         Chedid, 573 F.3d at 37 (quoting

Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc)).

            "For equitable tolling to apply, a party must establish

'(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.'"             Xue Su Wang,

750 F.3d at 90 (quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir.

2010) (per curiam)).     Furthermore, the party "must have diligently

pursued his rights for the entire period he seeks tolled, not

merely once he discovers the underlying circumstance warranting

tolling."   Neves, 613 F.3d at 36.

            Here,   Medina    provided   the    BIA   no   evidence   that    he

continuously pursued his rights.          The administrative record only


                                   - 7 -
shows that Medina filed an affidavit dated March 8, 2016, stating

"[f]or the past 3 years, I have stayed in touch with my attorneys."

This hardly constitutes the "specific details" we have required.6

Id. at 37.

             In   addition,   his   affidavit   only   covers   the   period

between March 2013 and March 2016.          This leaves another 21 months

unaccounted for, including the period from October 2012, when the

BIA dismissed his appeal, to March 2013, and the period from March

2016 to August 2017, when Medina filed the motion to reopen.            See

Jobe, 238 F.3d at 100 n.8 (noting that petitioner must fill in any

gaps in the timeline).        Therefore, the BIA cannot be said to have

abused its discretion in declining to apply equitable tolling.

Pineda, 908 F.3d at 842.

             In his brief, Medina also suggests that he was unaware

of his ineffective assistance of counsel claim until his present

counsel reviewed his case.          However, that contention does not



     6 Medina also relies on two out-of-circuit cases in support
of his equitable tolling argument. This reliance is misplaced.
In Avagyan v. Holder, the Ninth Circuit held that the petitioner
had diligently pursued relief when she filed a motion to reopen
within 90 days of learning of her prior counsel's incorrect advice.
646 F.3d 672, 682 (9th Cir. 2011).       Similarly, in Gordillo v.
Holder, the Sixth Circuit held that the petitioners had diligently
pursued relief because they had given up their claims only after
being repeatedly told by multiple lawyers that they did not have
any rights. 640 F.3d 700, 705 (6th Cir. 2011). By contrast, in
this case Medina fails to explain his five-year delay before filing
the motion to reopen, let alone provide the "specific details"
required by this circuit. See Neves, 613 F.3d at 37.


                                    - 8 -
comport with the record.          For example, there is evidence that

Medina was on notice of a potential ineffective assistance of

counsel claim from as early as March 2012, five years before filing

the motion to reopen.        At that time, his then-counsel wrote in a

brief to the BIA that "the withdrawal of the asylum application is

suspect in that [first counsel] indicated [initially] that she was

proceeding     on   the     [asylum]     application   and   then,   without

consultation    .   .   .   withdr[e]w    the   [asylum]   application   with

prejudice."    And, by Medina's own admission, the latest he became

aware of the potential claim was March 8, 2016, when he signed the

affidavit claiming that Sanchez's assistance was defective.              But,

Medina fails to explain why he took no action seeking relief until

August 2017, fifteen months later.

          Thus, even assuming equitable tolling could apply to

motions to reopen, Medina fails to show that he acted with the

diligence required to obtain such relief.              Accordingly, the BIA

did not abuse its discretion in denying his motion to reopen.

          III. Conclusion

          For the foregoing reasons, the petition for review is

DENIED.




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