     Case: 12-60665       Document: 00512411802         Page: 1     Date Filed: 10/17/2013



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

                                                                                FILED
                                                                           October 17, 2013
                                          No. 12-60665
                                                                             Lyle W. Cayce
                                                                                  Clerk
       JOSUE IBARRA-GONZALEZ, also known as Josue Ibarra,

                                                         Petitioner
       v.

       ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                         Respondent




                            Petition for Review of an Order of the
                               Board of Immigration Appeals
                                 BIA No. A043 724 594


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:1
       Josue Ibarra-Gonzalez, a native and citizen of Mexico, was ordered
removed from the United States in 2003 because he had been convicted of an
assault that constituted an aggravated felony and a crime of domestic
violence. In 2012, having illegally reentered, he filed a motion to reopen his
prior removal proceedings. Based on United States v. Villegas-Hernandez,
468 F.3d 874, 878-80 (5th Cir. 2006), he argued that he had been wrongly
deported because his offense was not a crime of violence and did not
constitute an aggravated felony or a crime of domestic violence.                     Ibarra-
Gonzalez now seeks review of the Board of Immigration Appeals’ (BIA) order


       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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denying his motion as both untimely filed and barred because it was filed
after he was deported from the United States.
      Ibarra-Gonzalez contends that the BIA should have equitably tolled the
period for filing his motion to reopen or sua sponte reopened his case because
he was unaware of Villegas-Hernandez at the time it was decided and, upon
hiring an attorney, was advised to first challenge his assault conviction via a
state writ of habeas corpus. However, we lack jurisdiction to review the BIA’s
denial of a request to sua sponte reopen immigration proceedings.              See
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008).             Although
Ibarra-Gonzalez asserts that a motion to reopen immigration proceedings is
reviewable by this court pursuant to Kucana v. Holder, 558 U.S. 233, 130 S.
Ct. 827, 175 L. Ed. 2d 694 (2010), Ibarra-Gonzalez’s argument overstates the
holding in Kucana.      The Supreme Court concluded in Kucana that the
jurisdiction-stripping provisions found in 8 U.S.C. §§ 1252(a)(2)(B)(i), (ii) do
not apply to agency decisions made discretionary by regulation. Id. at 252.
However, the Supreme Court clarified that it “express[ed] no opinion on
whether federal courts may review the [BIA]’s decision not to reopen removal
proceedings sua sponte.” Id. at 251, n.18 (“Courts of Appeals have held that
such decisions are unreviewable because sua sponte reopening is committed
to agency discretion by law . . . .”). The BIA’s decision not to reopen sua
sponte is an unreviewable discretionary decision, and nine of our sister
circuits are in accord with this holding. See Anaya-Aguilar v. Holder, 683
F.3d 369, 371-72 (7th Cir. 2012) (citing to eight circuits that have held since
Kucana that failure to reopen sua sponte is not a reviewable decision and
joining them in finding the same).
      We also lack jurisdiction to review the BIA’s denial of a request for
equitable tolling to the extent it is based on a claim of ineffective assistance of
counsel. See Bonilla, 543 F.3d at 220. To the extent we do have jurisdiction
to review the BIA’s denial of equitable tolling, Ibarra-Gonzalez has not shown
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                                  No. 12-60665
an abuse of discretion.   He did not exercise the type of due diligence in
bringing his claims that would warrant equitable tolling.
      For the first time in his petition for review, Ibarra-Gonzalez argues that
the BIA should have treated his motion as timely filed because he submitted
it within a reasonable time after he became aware of Villegas-Hernandez and
he was challenging the BIA’s jurisdiction, which may be raised at any time.
Also Ibarra-Gonzalez argues that the BIA should have equitably tolled the
time for filing his motion because he was denied the effective assistance of
counsel during his initial immigration proceedings. Because Ibarra-Gonzalez
did not exhaust his administrative remedies with regard to those claims, we
lack jurisdiction to review them. See Wang v. Ashcroft, 260 F.3d 448, 452-53
(5th Cir. 2001).
      As Ibarra-Gonzalez’s motion to reopen was properly dismissed as
untimely, we need not address the BIA’s alternative determination that it
lacked jurisdiction to consider the motion because it was filed after Ibarra-
Gonzalez was deported from the United States. Cf. Garcia-Carias v. Holder,
697 F.3d 257 (5th Cir. 2012) (holding that departure regulation 8 C.F.R.
§ 1003.2(d) cannot be applied to statutorily authorized motions to reopen).
              PETITION DISMISSED IN PART AND DENIED IN PART.




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