    Case: 15-60697   Document: 00514098079    Page: 1     Date Filed: 08/01/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                               No. 15-60697
                                                                           Fifth Circuit

                                                                         FILED
                                                                    August 1, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
ANGELICA GONZALEZ-CANTU,

                                        Petitioner,

versus

JEFFERSON B. SESSIONS, III, U.S. Attorney General,

                                        Respondent.




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




Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Angelica Gonzalez-Cantu was removed from the United States in 2000
and filed a motion to reopen the removal proceeding in 2015. The immigration
judge (“IJ”) denied the motion as untimely, and the Board of Immigration
Appeals (“BIA”) dismissed Gonzalez-Cantu’s appeal. She petitions for review
of the BIA’s denial, contending that the limitations period should have been
equitably tolled. Because she has not met her burden to show that she is
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                                  No. 15-60697
entitled to equitable tolling, we deny the petition.

                                        I.
      Gonzalez-Cantu, a native and citizen of Mexico, was admitted as a lawful
permanent resident in 1992. In 2000, she was convicted in state court of driv-
ing while intoxicated (“DWI”). Shortly thereafter, she was served with a notice
to appear charging her as removable under 8 U.S.C. § 1227(a)(2)(A)(iii), be-
cause she was an alien convicted of an aggravated felony, as defined in 8 U.S.C.
§ 1101(a)(43)(F), namely, a “crime of violence” (“COV”).        The IJ ordered
Gonzalez-Cantu removed, and she alleges that she returned to Mexico.

      In March 2015, Gonzalez-Cantu filed a motion to reopen her removal
proceedings. See 8 U.S.C. § 1229a(c)(7)(A). She contended that the removal
order was no longer valid in light of United States v. Chapa-Garza, 243 F.3d
921, 928 (5th Cir. 2001), which held that Texas DWI is not a COV and thus not
an aggravated felony. Gonzalez-Cantu acknowledged that her motion was
outside the 90-day statute of limitations, see 8 U.S.C. § 1229a(c)(7)(C), but she
asserted that she had been precluded from filing a motion until 2012 because
of the “departure bar,” which prohibits an IJ from considering motions to
reopen from removed aliens who have already departed. See 8 C.F.R.
§ 1003.23(b)(1). She pointed to Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th
Cir. 2012), in which this court, reversing the BIA, held that aliens have “a right
to file a motion to reopen [under 8 U.S.C. § 1229a] regardless of whether they
have left the United States.” Gonzalez-Cantu maintained that limitations
should have been equitably tolled until she discovered Garcia-Carias and that
her motion was thus timely. In the alternative, she requested that the IJ
reopen her case sua sponte. Finally, she averred that her removal resulted in
a “gross miscarriage of justice” that warranted reopening.

      The IJ denied the motion as untimely, concluding that equitable tolling
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                                  No. 15-60697
was inappropriate given that Gonzalez-Cantu had “failed to explain why she
did not file her motion to reopen until several years after the legal changes
invoked by her took effect.”     The IJ also declined to reopen sua sponte.
Gonzalez-Cantu appealed to the BIA.

      The BIA dismissed the appeal, concluding that even if equitable tolling
applied to motions to reopen, she had failed to show diligence in filing her
motion. The BIA also concluded that the IJ did not abuse his discretion in
declining to reopen sua sponte and that Gonzalez-Cantu’s removal was not a
gross miscarriage of justice because the removal order was valid at the time it
was entered and executed.

                                       II.
      “An alien seeking 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 8 U.S.C. § 1229a(c)(7).” Lugo-
Resendez v. Lynch, 831 F.3d 337, 340–41 (5th Cir. 2016). “The Immigration
Court’s regulatory authority is governed by § 1003.23(b) while the BIA’s
regulatory authority is governed by § 1003.2(a).” Id. at 341 n.9. Gonzalez-
Cantu requested both forms of relief. We address the denial of the statutory
request in this section and the denial of the regulatory request in the next.

      “In reviewing the denial of a motion to reopen, this court applies a highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009)
(citation omitted). We “must affirm the BIA’s decision as long as it is not capri-
cious, without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Id.
(citation omitted). Additionally, “motions to reopen deportation proceedings
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                                        No. 15-60697
are ‘disfavored,’ and the moving party bears a ‘heavy burden.’” 1

       A statutory motion to reopen must be filed “within 90 days of the date of
entry of a final administrative order of removal,” subject to exceptions not rele-
vant here. 8 U.S.C. § 1229a(c)(7)(C)(i). Gonzalez-Cantu concedes that her
motion, which she filed more than fourteen years after her removal order
became final, was untimely under the terms of the statute. But she contends
that the BIA should have equitably tolled the limitations period.

       Motions to reopen under § 1229a are subject to equitable tolling. Lugo–
Resendez, 831 F.3d at 343–44. The BIA must apply the same tolling standard
that we use in other contexts. Id. at 344. Under that standard, “a litigant is
entitled to equitable tolling of a statute of limitations only if the litigant estab-
lishes 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.” Id. (quotation marks and citations omitted).

        Gonzalez-Cantu has not shown that she is entitled to equitable tolling.
She reprises the tolling argument she made to the BIA: that the departure bar
would have prevented her from filing a motion to reopen before we decided
Garcia-Carias in September 2012 and that tolling should thus apply until she
discovered Garcia-Carias. But even assuming, for the sake of argument, that
equitable tolling might be available until her discovery of Garcia-Carias, she
has failed to provide any facts to support such a theory. 2 The only evidence
she presents is a sworn statement, in which she says that she “recently found
out that a case was released, that would give [her] the ability to return to the


       1 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549–50 (5th Cir. 2006) (per curiam)
(quoting INS v. Abudu, 485 U.S. 94, 107–08 (1988)).
       2See Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002) (“The party who invokes
equitable tolling bears the burden of proof.”); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.
2000) (per curiam) (same).
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                                      No. 15-60697
United States . . . .” But she does not specify when she learned of the case, a
question of crucial importance when determining timeliness. 3

       Because Gonzalez-Cantu filed her motion to reopen on March 18, 2015,
she needs to show that she discovered Garcia-Carias no more than 90 days
before that date, given that her lack of knowledge of that case was the
circumstance that supposedly tolled the limitations period. Yet her sworn
statement, executed on January 5, 2015, says only that she learned of the case
“recently.” “Recently” could mean several weeks before or several months
before, either of which defeats her tolling claim. Indeed, at one point in her
motion to reopen, she said she learned of Garcia-Carias on October 10, 2014,
and the IJ concluded, based on that date, that her motion was untimely.
Although Gonzalez-Cantu claims that the October date was a “typographical
error,” it further shows that she has failed to establish when she actually
learned of the case. Thus, Gonzalez-Cantu has not met her burden to show
that equitable tolling applies, and the BIA did not abuse its discretion in
finding that her motion reopen was untimely. 4

                                            III.
       Gonzalez-Cantu contends that the BIA abused its discretion by refusing
to exercise its regulatory power to reopen her case sua sponte. 5 But “because
this provision gives an IJ or the BIA complete discretion to deny untimely
motions to reopen, the reviewing court has no legal standard by which to judge


       3In her briefs, Gonzalez-Cantu states that the “case” is Garcia-Carias. We accept
that understanding of her sworn statement.
       4 In addition, Gonzalez-Cantu has not explained how she learned of Garcia-Carias,
what efforts she took to discover it, or why it took almost three years to do so. Those facts
are relevant to assessing her diligence, but we need not address them because her failure to
establish when she learned of the case is fatal to her claim.
       5See 8 C.F.R. § 1003.2 (“The Board may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision.”).
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                                         No. 15-60697
the IJ’s ruling, and therefore the court lacks jurisdiction.” 6 Thus, we cannot
consider the BIA’s or the IJ’s refusal to reopen sua sponte.

                                               IV.
       Separately from her arguments on tolling, Gonzalez-Cantu asserts that
her motion to reopen should be permitted because her removal proceeding was
a “gross miscarriage of justice.” But the precedents she relies on are not on
point. We have discussed the standard in two somewhat related contexts:
habeas corpus petitions that collaterally attack removal orders 7 and reinstate-
ment proceedings. 8 In each context, a statute withheld jurisdiction to review
the validity of the removal order, but we said review was available if a “gross
miscarriage of justice” had occurred. 9 Gonzalez-Cantu does not explain how
those precedents can be applied to overcome an untimely petition.

       Even assuming that a “gross miscarriage of justice” would empower this
court to grant her petition, Gonzalez-Cantu has not met that bar. The Attorney
General notes that, although we have not expressly defined the standard for
gross-miscarriage-of-justice claims, we have looked, arguendo, to an out-of-
circuit test: “[whether] the removal order the petitioner collaterally challenges
was clearly unlawful under the law that existed at the time of the original
removal proceeding.” 10 Gonzalez-Cantu’s removal proceedings do not satisfy



       6Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008) (citing Enriquez-
Alvarado v. Ashcroft, 371 F.3d 246, 249–50 (5th Cir. 2004)), overruled on other grounds by
Mata v. Lynch, 135 S. Ct. 2150, 2155−56 (2015). In Mata, the Court did not touch the deter-
mination in Ramos-Bonilla that “complete discretion” precludes reversal on appeal.
       7 E.g., Lara v. Trominski, 216 F.3d 487, 491 (5th Cir. 2000); United States ex rel. Steff-
ner v. Carmichael, 183 F.2d 19, 19 (5th Cir. 1950).
       8   E.g., Ibarra-Leyva v. Johnson, 623 F. App’x 163, 166 (5th Cir. 2015) (per curiam).
       9   See Lara, 216 F.3d at 491–92; Ibarra-Leyva, 623 F. App’x at 166–67 & n.8.
       10See Ibarra-Leyva, 623 F. App’x at 166–67 (citing Debeato v. Att’y Gen. of U.S., 505
F.3d 231, 236 (3d Cir. 2007); Arreola–Arreola v. Ashcroft, 383 F.3d 956, 958 (9th Cir. 2004),
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that test. At the time of those proceedings, BIA precedent held that Texas DWI
was an aggravated felony. 11 Moreover, this court had reached the same conclu-
sion in 1999. 12 Although that opinion was withdrawn, on other grounds, sev-
eral months before the IJ issued Gonzalez-Cantu’s removal order in 2000, 13 it
demonstrates that the order was hardly “clearly unlawful.” Thus, the BIA did
not err in finding that the removal order was not a “gross miscarriage of
justice.”

       The petition for review is DENIED.




abrogated on other grounds by Morales–Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007);
Robledo–Gonzales v. Ashcroft, 342 F.3d 667, 682 n.13 (7th Cir. 2003); In re Malone, 11 I. & N.
Dec. 730, 731–32 (BIA 1966)).
       11  In Re Puente-Salazar, 22 I. & N. Dec. 1006, 1014 (BIA 1999) (“[W]e find no error in
the Immigration Judge’s determination that a crime of [Texas DWI] . . . is an aggravated
felony.”), overruled by In Re Ramos, 23 I. & N. Dec. 336, 346 (BIA 2002) (en banc).
       12Camacho-Marroquin v. INS, 188 F.3d 649, 651–52 (5th Cir. 1999), opinion with-
drawn, reh’g dismissed, 222 F.3d 1040 (5th Cir. 2000).
       13   See Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir. 2000).
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