     Case: 14-60895      Document: 00514075672         Page: 1    Date Filed: 07/17/2017




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


                                    No. 14-60895
                                                                                  FILED
                                                                              July 17, 2017
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
VICTOR VILLEGAS, also known as Victor Hernandez Villegas,

                                                 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. A091 216 266


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Victor Villegas, a native and citizen of Mexico, entered the United States
on December 3, 1975, without admission or parole by an immigration officer,
when he was seventeen years old. On March 17, 1990, his status was adjusted
to that of a lawful permanent resident. On July 20, 2000, Villegas was removed
from the United States after the Board of Immigration Appeals (BIA)
determined that Villegas was removable as an alien convicted of an aggravated


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60895

felony, a crime of violence, because he had been convicted in Texas of felony
driving while intoxicated (DWI).
      Meanwhile, Villegas reentered the United States not long after his
removal. He was detained by ICE on June 14, 2013, and ICE reinstated
Villegas’s October 1999 order of removal. On June 17, 2013, Villegas filed a
motion to reconsider or reopen and terminate his removal proceedings with the
BIA on the basis that after United States v. Chapa-Garza, 243 F.3d 921, 927
(5th Cir. 2001), and Leocal v. Ashcroft, 543 U.S. 1, 3-4 (2004), a Texas felony
DWI offense was not a crime of violence, as defined in 18 U.S.C. § 16(b), and
therefore was not an aggravated felony, as set forth in 8 U.S.C.
§ 1101(a)(43)(F). On January 13, 2014, DHS moved to remand the case to the
BIA so that it could consider whether it had jurisdiction to reopen Villegas’s
case; whether Villegas’s DWI offense was a crime of violence under Leocal and
Chapa-Garza,; and whether sua sponte reopening was warranted.
      On November 13, 2014, on remand, the BIA declined to reopen or
reconsider Villegas’s case. The BIA noted that it had concluded in its February
18, 2014 and August 21, 2013 decisions that the departure bar applied; that
even assuming it had jurisdiction, Villegas’s motion was both statutorily time
and number barred; that Villegas’s motion was not statutorily authorized; and
that the departure bar could be applied, which precluded it from exercising
jurisdiction sua sponte. The BIA found that “[u]pon reconsideration,” there
was “no factual or legal error in either [its] August 21, 2013, and February 18,
2014, decisions,” noting that Villegas’s “motion was not a statutory motion.”
      Villegas filed a timely petition for review from this order.            The
proceedings were stayed pending a decision by the Supreme Court in Mata
v. Lynch, 135 S. Ct. 2150 (2015), and again pending a decision in Lugo-
Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016).



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                                  No. 14-60895

      This Court reviews 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).
      Villegas contends that he is entitled to equitable tolling of the 90-day
period for filing motions to reopen in 8 U.S.C. § 1229a(c)(7)(A), (C)(i) because
the crime for which he was convicted is not a crime of violence and that he was
unaware of Chapa-Garza and Leocal. In his supplement to his motion to
reconsider or reopen, Villegas argued that the 90-day time limit for filing
motions to reopen was not jurisdictional and that equitable tolling would be
appropriate in his case because he was not aware of Leocal until he met with
his counsel some years later. The BIA did not address the issue of equitable
tolling in its order of August 21, 2013. In its subsequent order of November
13, 2014 on remand, the BIA reaffirmed its prior ruling that it did not have
jurisdiction over Villegas’s motion because it was not a statutory motion. The
BIA did not consider or address equitable tolling.
      The respondent notes that the BIA did not address equitable tolling. The
respondent states that if the Supreme Court in Mata v. Lynch concluded that
statutory motions to reopen were amenable to equitable tolling, “the Court
should remand this case to the Board so that it may apply that doctrine and
determine whether Petitioner’s motion was timely.”
      Although Mata declined to decide whether equitable tolling applies to
the 90-day period to file a motion to reopen, 135 S. Ct. at 2155 n.3, we held that
statutory motions to reopen are subject to equitable tolling in Lugo-Resendez,



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                                  No. 14-60895

831 F.3d at 343-44. In Lugo-Resendez, we explained that the proper equitable
tolling standard in this context is the same as in others: the alien must
establish “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Id.
at 344. 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.
      Following Lugo-Resendez, 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. Lugo-Resendez, 831 F.3d at 344-45.




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