     Case: 17-60333       Document: 00515508467         Page: 1     Date Filed: 07/29/2020




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

                                                                             FILED
                                                                          July 29, 2020
                                     No. 17-60333
                                   Summary Calendar                      Lyle W. Cayce
                                                                              Clerk


PEDRO PABLO GUERRERO-LASPRILLA,

                                                  Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A040 249 969


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       In Guerrero-Lasprilla v. Sessions, our court dismissed for lack of
jurisdiction the petition for review. 737 F. App’x 230, 230 (5th Cir. 2018) (per
curiam), vacated, 140 S. Ct. 1062 (2020). In doing so, we noted: “whether an
alien acted diligently in attempting to reopen removal proceedings for purposes


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-60333

of equitable tolling is a factual question”. Id. at 231 (citing Penalva v. Sessions,
884 F.3d 521, 525 (5th Cir. 2018)). Consequently, we held: “[b]ecause Guerrero
was removable on account of criminal convictions that qualified as aggravated
felonies as well as violations of laws relating to controlled substances, we
lack[ed] jurisdiction to consider the factual question of whether he acted with
the requisite diligence to warrant equitable tolling”.        Id. (citing 8 U.S.C.
§§ 1227(a)(2)(A)(iii), (B)(i); 8 U.S.C. § 1252(a)(2)(C); Penalva, 884 F.3d at 525–
26).
        On 23 March 2020, however, the Supreme Court held:
        [I]n this kind of immigration case (involving [an alien] who [is]
        removable for having committed certain crimes), a court of appeals
        may consider only “constitutional claims or questions of law.”
        8 U.S.C. § 1252(a)(2)(D). The issue before us is, as we have said,
        whether the statutory phrase “questions of law” includes the
        application of a legal standard to undisputed or established facts.
        If so, the Fifth Circuit erred in holding that it “lack[ed]
        jurisdiction” to consider [petitioner’s] claim[ ] of due diligence for
        equitable tolling purposes. We conclude that the phrase “questions
        of law” does include this type of review, and the Court of Appeals
        was wrong to hold the contrary.

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020).
        In so holding, the Court vacated our judgment and “remand[ed] the[ ]
case[ ] for further proceedings consistent with [its] opinion”. Id. at 1073. On
remand, we directed the parties to file supplemental letter briefs on the
action’s merits. We now substitute this opinion for our prior opinion.
        Pedro Pablo Guerrero-Lasprilla, a native and citizen of Colombia, was
admitted to the United States in 1986 as an immigrant. He was ordered
removed, however, in 1998 following felony convictions of conspiracy to
possess, with intent to distribute, cocaine base and possession, with intent to
distribute, cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1)
and 846. In September 2016, Guerrero filed a motion to reopen his removal

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proceedings, claiming Matter of Abdelghany, 26 I. & N. Dec. 254 (B.I.A. 2014),
rendered him eligible to seek relief under former Immigration and Nationality
Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).
      The immigration judge (IJ) denied the motion to reopen, determining it
was untimely under 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen must be filed
within 90 days of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before September 30, 1996, whichever is
later.”). The IJ further determined: Guerrero was “not entitled to equitable
tolling of his untimely motion to reopen” because his waiting two years to file
his motion to reopen, after his right to seek § 212(c) relief was explained by
Matter of Abdelghany in 2014, did not show he diligently pursued his rights;
even if he was entitled to equitable tolling, Guerrero had not met the
requirement of filing a special motion to seek relief under former § 212(c) on or
before 25 April 2005; and the IJ would not exercise discretion to reopen
Guerrero’s proceedings sua sponte.
      On appeal, the Board of Immigration Appeals (BIA) adopted and
affirmed the IJ’s denial of the motion to reopen and dismissed the appeal. In
doing so, the BIA similarly determined: “[t]he motion to reopen was untimely
because it was not filed within 90 days of the final administrative decision in
this case”; equitable tolling did not excuse the untimely filing, and Guerrero’s
contention he could not have filed his motion prior to our court’s decision in
Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016), was unavailing; even if
Guerrero’s contention could support an equitable-tolling claim, he had failed
to file the special motion seeking relief required under former § 212(c); and sua
sponte reopening of the proceedings was unwarranted.
      In his petition for review to our court, Guerrero asserted the BIA erred
in denying his motion to reopen removal proceedings based on its



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determinations: he was not entitled to equitable tolling on his motion; and he
failed to file the required special motion seeking relief under former § 212(c).
(Guerrero also contended the BIA erred by not exercising its discretion to
reopen proceedings sua sponte. Because this issue was raised for the first time
in Guerrero’s reply brief, however, we did not consider it. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993) (citation omitted). In any event, we lack
jurisdiction to review the BIA’s decision not to reopen proceedings sua sponte.
See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248–50 (5th Cir. 2004),
overruled on other grounds by Mata v. Lynch, 135 S. Ct. 2150, 2155–56 (2015).)
      “In reviewing the denial of a motion to reopen, [our] 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). “Accordingly, this court must affirm the BIA’s
decision as long as it is not capricious, 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). In considering the BIA’s
decision (and the IJ’s decision, to the extent it influenced the BIA), we review
legal conclusions de novo and factual findings for substantial evidence. Id.
(citations omitted).   (Guerrero contends erroneously in his supplemental
briefing that our review is de novo. See id. (citation omitted).)
      As referenced supra, because Guerrero was removable on account of
criminal convictions that qualified as aggravated felonies and as violations of
laws relating to controlled substances, our court has jurisdiction only over
constitutional claims and questions of law raised in his petition for review. See
8 U.S.C. §§ 1227(a)(2)(A)(iii), (B)(i); 8 U.S.C. §§ 1252(a)(2)(C), (D). Whether
Guerrero exercised due diligence, for equitable-tolling purposes, is such a




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“question of law” over which we have jurisdiction. Guerrero-Lasprilla, 140 S.
Ct. at 1068.
      In that regard, “the deadline for filing a motion to reopen . . . is subject
to equitable tolling”. Lugo-Resendez, 831 F.3d at 344. But, equitable tolling is
warranted only if petitioner establishes “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing”. Id. (citation omitted). “The first element
requires [petitioner] to establish that he pursued his rights with reasonable
diligence, not maximum feasible diligence”, and “[t]he second element requires
[petitioner] to establish that an extraordinary circumstance beyond his control
prevented him from complying with the applicable deadline”. Id. (internal
quotation marks and citations omitted). Importantly, “[c]ourts must consider
the individual facts and circumstances of each case in determining whether
equitable tolling is appropriate”. Id. at 344–45 (citation omitted).
      In challenging the BIA’s equitable-tolling determination, Guerrero
asserted in his original briefing to our court: he could not have moved to reopen
his removal proceedings before our court decided Lugo-Resendez in 2016, even
though the BIA decided Matter of Abdelghany in 2014, because any prior-filed
motion would have been procedurally barred; and he was diligent by filing his
motion to reopen 40 days after the Lugo-Resendez decision.                In his
supplemental briefing, Guerrero further contended, quoting Silverio-Da Silva
v. Boente, 675 F. App’x 487, 488 (5th Cir. 2017) (per curiam) (citation omitted),
that Lugo-Resendez was “an intervening change in binding precedent” that
satisfied equitable tolling’s “extraordinary circumstance” element. See Lugo-
Resendez, 831 F.3d at 344 (citation omitted).




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      The BIA did not err, however, in denying Guerrero’s motion to reopen on
this ground. Facing “an uncertain outcome based upon an uncertain legal
landscape” is not an extraordinary circumstance warranting equitable tolling.
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 757 (2016)
(citation omitted). As Guerrero stated in his opening brief for the original
briefing here, “[w]hen this [c]ourt held [in Lugo-Resendez] that the deadline for
filing a motion to reopen . . . was subject to equitable tolling, it answered that
question for the first time”. Indeed, our court noted in its Lugo-Resendez
decision that, “[d]espite numerous opportunities to do so, [our] [c]ourt ha[d] not
decided whether equitable tolling applie[d] to the 90-day deadline for filing a
motion to reopen” before then “join[ing] our sister circuits in holding that the
deadline for filing a motion to reopen . . . is subject to equitable tolling”. Lugo-
Resendez, 831 F.3d at 343–44.
      This situation is, therefore, distinct from one where petitioner “rel[ies]
on actually binding precedent that is subsequently reversed”, see Menominee
Indian Tribe, 136 S. Ct. at 757 (emphasis in original), as no precedent existed
foreclosing the contention that motions to reopen are subject to equitable
tolling. And, although our court had previously construed an equitable-tolling
request “as an invitation for the BIA to exercise its discretion to reopen the
removal proceeding sua sponte”, an exercise of “complete discretion” we lacked
jurisdiction to review, “the Supreme Court rejected this jurisdictional rule and
instructed [our] [c]ourt to stop recharacterizing requests to equitably toll the
deadline for filing a statutory motion to reopen” in June 2015. Lugo-Resendez,
831 F.3d at 343 (citing, inter alia, Mata v. Lynch, 135 S. Ct. at 2155–56). More
than another year passed, however, before Guerrero filed his September 2016
motion to reopen.




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      Moreover, Guerrero’s reliance on Silverio-Da Silva is inapposite. The
sentence Guerrero quotes from Silverio-Da Silva states in full: “Remand may
be appropriate when the BIA’s decision has become unsustainable in [the] light
of an intervening change in binding precedent”. Silverio-Da Silva, 675 F. App’x
at 488 (citation omitted).    To the extent this could be read, as Guerrero
contends, to describe Lugo-Resendez as “an intervening change in binding
precedent”, such a characterization is incorrect. As stated, Lugo-Resendez
itself noted (and Guerrero conceded in his opening brief in his original briefing
here) that our court had never decided whether equitable tolling applied to a
motion to reopen’s filing deadline prior to Lugo-Resendez’ so holding. See Lugo-
Resendez, 831 F.3d at 343. And, in any event, it goes without saying that
Silverio-Da Silva, an unpublished opinion, is not binding on our court. E.g.,
Dick v. Colo. Hous. Enters., L.L.C., 872 F.3d 709, 711–12 (5th Cir. 2017) (per
curiam) (citing 5th Cir. R. 47.5.4).
      Because the above-discussed equitable-tolling issue is dispositive of the
instant petition for review, we need not consider Guerrero’s contention that the
BIA erred in determining he failed to file the required special motion seeking
relief. See Guevara v. Gonzales, 450 F.3d 173, 176 n.4 (5th Cir. 2006).
      DENIED.




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