     Case: 16-60017      Document: 00514143265         Page: 1    Date Filed: 09/05/2017




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

                                      No. 16-60017                                 FILED
                                                                           September 5, 2017
                                                                              Lyle W. Cayce
JUAN RAMON TARANGO, also known as Ramon Tarango,                                   Clerk

              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. A 090 398 253


Before KING, JONES, and ELROD, Circuit Judges.
PER CURIAM:*
       Juan Ramon Tarango petitions for review of the Board of Immigration
Appeals’s denial of his third motion to reopen his immigration proceedings as
untimely and numerically barred. Tarango contends that the Board erred in
failing to address his argument that equitable tolling renders his motion
timely, but he does not address why his motion is not number-barred, in
addition to being untimely. Because this is Tarango’s third successive motion


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60017
to reopen, we interpret it as a motion for the Board to exercise its discretionary
authority to sua sponte reopen Tarango’s proceedings.           Accordingly, we
DISMISS his petition for lack of jurisdiction over the Board’s use of its sua
sponte authority.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Juan Ramon Tarango is a native and citizen of Mexico. In 1974, he
entered the United States as a baby, without inspection by an immigration
officer, and adjusted his status to lawful permanent resident in 1988. In 1996,
Tarango pleaded guilty in Harris County, Texas, to intentionally and
knowingly possessing less than one gram of cocaine, for which he received a
deferred adjudication of guilt and two years’ probation. Shortly afterwards,
the former Immigration and Naturalization Service issued Tarango an Order
to Show Cause and Notice of Hearing, which charged that Tarango was
deportable based on this controlled substance conviction.          See 8 U.S.C.
§ 1227(a)(2)(B)(i) (1996) (currently codified at 8 U.S.C. § 1227(a)(2)(B)(i))
(providing that any alien who, after admission, is convicted of violating any
law “relating to a controlled substance [other than for an inapplicable
exception] . . . is deportable”). On December 8, 1998, an immigration judge
ordered Tarango deported. Tarango alleges that he was ultimately deported
to Mexico in 2009.
      In February 2012, Tarango filed his first motion to reopen his
immigration proceedings, in which he argued, among other things, that
previously unavailable evidence (namely, a recently decided case from this
circuit) established that he was eligible for cancellation of removal. The Board
of Immigration Appeals (BIA) denied Tarango’s motion on the basis that
because he had been placed in deportation proceedings, he was ineligible for
cancellation of removal. In June 2013, Tarango filed a second motion to reopen,
this time requesting that the BIA exercise its sua sponte authority to reopen
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his immigration proceedings. He argued that, subsequent to his removal order,
fundamental changes in the law had affected his eligibility for a waiver of
deportation under former 8 U.S.C. § 1182(c), and thus his case presented an
exceptional circumstance warranting reopening. But the BIA again declined
to reopen, finding it unwarranted because Tarango was statutorily ineligible
for a waiver. Tarango petitioned this court for review, and we dismissed his
petition for lack of jurisdiction because it sought review of the BIA’s use of its
sua sponte authority. Tarango v. Holder, 592 F. App’x 293, 295 (5th Cir. 2014)
(per curiam).
      Tarango filed his third motion to reopen—the subject of the instant
petition for review—in September 2015.          He argued that, based on the
Supreme Court’s recent decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), he
was entitled to equitable tolling of the statutory deadline for filing his motion,
rendering it timely. He reiterated his request that the proceedings be reopened
to allow him to apply for a waiver of deportation. The BIA denied the motion,
finding it both untimely and number-barred. The BIA further noted that it
declined to exercise its sua sponte authority to reopen Tarango’s proceedings
because he was statutorily ineligible for a waiver of deportation. Tarango filed
a timely petition for review with this court.
                II. JURISDICTION OVER THIS PETITION
      We begin our analysis of a petition for review of a BIA decision by
determining whether we have jurisdiction to conduct such a review. Rodriguez
v. Holder, 705 F.3d 207, 210 (5th Cir. 2013). Regardless of our jurisdiction over
the underlying petition, we always have jurisdiction to review jurisdictional
facts. Id. We review questions of jurisdiction de novo. Id.; see also Hadwani
v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Because we
conclude we lack jurisdiction over Tarango’s petition, we do not address the
merits of his equitable tolling argument.
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       Tarango petitions for review of the BIA’s denial of his third motion to
reopen. “A motion to reopen is a form of procedural relief that asks the [BIA]
to change its decision in light of newly discovered evidence or a change in
circumstances since the hearing.” Lugo–Resendez v. Lynch, 831 F.3d 337, 339
(5th Cir. 2016) (alteration omitted) (quoting Dada v. Mukasey, 554 U.S. 1, 12
(2008)). A motion to reopen may also be made in order to obtain discretionary
relief that was not available at the time of the original hearing. 1 Immigr. Law
and Defense § 9:13. An alien has two avenues through which he may move to
reopen proceedings: a statutory motion to reopen or a regulatory motion to
reopen. Lugo–Resendez, 831 F.3d at 340–41. First, an alien subject to a
deportation order has a statutory right to file one motion to reopen the
proceedings. 8 U.S.C. § 1229a(c)(7)(A); see Mata, 135 S. Ct. at 2153. Subject
to exceptions not relevant here, 1 a statutory motion to reopen must be filed
within 90 days of the final removal order. 8 U.S.C. § 1229a(c)(7)(C). However,
this 90-day deadline is subject to equitable tolling “in certain circumstances.”
Lugo–Resendez, 831 F.3d at 343–44. In general, we have jurisdiction over a
petition seeking review of the denial of a statutory motion to reopen, including
those based on the denial of equitable tolling. Mata, 135 S. Ct at 2154 (citing
Kucana v. Holder, 558 U.S. 233, 242 (2010)).
       In addition to a statutory motion to reopen, an alien can file a regulatory
motion to reopen, which invokes the BIA’s or immigration judge’s discretionary
authority to sua sponte reopen the removal proceedings at any time. Lugo–
Resendez, 831 F.3d at 340–42; see 8 C.F.R. §§ 1003.2(a), 1003.23(b). The BIA
invokes its sua sponte authority “sparingly, treating it not as a general remedy


       1The 90-day deadline does not apply to (1) aliens seeking asylum who can point to
“changed country conditions” in the country to which they were removed; (2) battered
spouses, children, and parents who meet certain specifications; (3) aliens who jointly file the
motion to reopen with the Government; and (4) certain aliens who were ordered removed in
absentia. 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv); 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4).
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for any hardships created by enforcement of the time and number limits in the
motions regulations, but as an extraordinary remedy reserved for truly
exceptional situations.” In re G-D-, 22 I & N Dec. 1132, 1133–34 (BIA 1999).
The regulations vest the decision of whether to sua sponte reopen entirely in
the discretion of the immigration judge or the BIA, and as a result, we have
“no legal standard against which to judge” the denial of a regulatory motion to
reopen. Enriquez–Alvarado v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004); see
also Mata, 135 S. Ct. at 2155 (noting holding in Enriquez–Alvarado and
“assuming arguendo” that it was correct). Accordingly, bound as we are by our
rule of orderliness, see Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
(5th Cir. 2008), we do not have jurisdiction over a petition seeking review of
the denial of a regulatory motion to reopen, Enriquez–Alvarado, 371 F.3d at
249–50.
      Thus, whether we have jurisdiction over Tarango’s petition turns on
whether his motion to reopen was filed pursuant to his statutory right or,
instead, his motion invokes the BIA’s sua sponte authority to reopen. To
distinguish between the two types of motions to reopen, we rely on whether the
alien’s motion complies with the statute. “[A] motion to reopen that does not
comply with the [statutory] requirements . . . must be construed as a
regulatory motion to re-open.” Lugo–Resendez, 831 F.3d at 342. The statutory
requirements provide that an alien may file “one motion to reopen
proceedings . . . within 90 days of entry of a final administrative order of
removal.” 8 U.S.C. § 1229a(c)(7) (emphasis added). In other words, a motion
to reopen constitutes a statutory motion to reopen only if it complies with the
numerical and time limitations imposed by the statute, or if its untimeliness
may be excused on the basis of equitable tolling. Lugo–Resendez, 831 F.3d at
342–43.


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       Tarango’s motion complies with neither of these limitations.                         It is
undisputed that this is his third motion to reopen—two more than the
numerical limit—and that the motion was filed years after his final
deportation order, long after the 90 day statutory deadline. Tarango’s brief
offers a basis to excuse the untimeliness of his motion, but not the fact that it
is numerically barred. In his brief, Tarango discusses his equitable tolling
argument only in relation to the time limitation on motions to reopen, not the
numerical limitation. Thus, even if we assume arguendo that Tarango is
entitled to equitable tolling of the statutory deadline excusing the motion’s
untimeliness, as Tarango asserts, we are still left with the numerical limit. An
alien has a statutory right to file only one motion to reopen.                        8 U.S.C.
§ 1229a(c)(7). Tarango offers no argument for why his motion to reopen—his
third such motion—complies with the numerical limitation provided in the
statute. Indeed, we have only applied equitable tolling to the time limitation
on motions to reopen and have never held that it may also apply to the
numerical limitation. 2 Lugo–Resendez, 831 F.3d at 343–44 (holding only that


       2  Many of our sister circuits have also left this an open question. See Singh v. Sessions,
--- F. App’x ---, 2017 WL 2126588, at *3 (10th Cir. 2017) (“[W]hether the number limitation
may . . . be equitably tolled remains an open question.”); Ruiz–Turcios v. U.S. Att’y Gen., 717
F.3d 847, 850 (11th Cir. 2013) (“[T]here is no precedent in [the Eleventh Circuit] which has
addressed whether [the] one-motion limitation is . . . subject to equitable tolling.”); Tapia–
Martinez v. Gonzales, 482 F.3d 417, 422–23 (6th Cir. 2007) (“[The Sixth Circuit] has never
held that equitable tolling applies to numerical limitations on motions to reopen.” (quoting
Sene v. Gonzales, 180 F. App’x 551, 555 (6th Cir. 2006))); Luntungan v. Att’y Gen., 449 F.3d
551, 557 (3d Cir. 2006) (“[The Third Circuit] ha[s] not issued a precedential opinion deciding
whether numerical limits on motions to reopen may be equitably tolled . . . .”). Further, the
few sister circuits that have decided the question have not permitted the numerical limitation
to be equitably tolled on the basis of changes in the law, which is the basis urged by Tarango.
See Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008) (permitting equitable tolling of the
number limit where the petitioner alleges ineffective assistance of counsel); Iturribarria v.
INS, 321 F.3d 889, 897 (9th Cir. 2003) (permitting equitable tolling of the numerical limits
“during periods when the petitioner is prevented from filing because of deception, fraud, or
error”); Davies v. INS, 10 F. App’x 223, 224 (4th Cir. 2001) (per curiam) (permitting equitable
tolling of numerical limitation where the petitioners alleged ineffective assistance of counsel).

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                                    No. 16-60017
equitable tolling applies to the time limitation and not addressing the
numerical limitation). Because Tarango does not argue that he is entitled to
equitable tolling of the numerical limitation, we need not, and do not, address
this question today.
       Tarango’s motion to reopen did not comply with the statute’s numerical
limitation and he does not offer a basis for excusing this noncompliance.
Accordingly, we must construe it as a regulatory motion to reopen invoking the
BIA’s sua sponte power to reopen proceedings. Id. at 342–43. But, under our
rule of orderliness, we lack jurisdiction over a petition seeking review of the
BIA’s use of its sua sponte authority. Enriquez–Alvarado, 371 F.3d at 249–50.
We therefore lack jurisdiction over Tarango’s petition for review.
       The only argument that Tarango offers in support of our jurisdiction is
unavailing. Tarango urges that, following the Supreme Court’s decision in
Mata, all motions to reopen are filed pursuant to statute.            According to
Tarango, Mata abolished regulatory motions to reopen. Thus, he claims, this
court must possess jurisdiction over his motion to reopen. However, Tarango
mischaracterizes Mata’s holding. Mata did not end regulatory motions to
reopen, nor did it disturb our precedent, Enriquez–Alvarado, 371 F.3d at 249–
50, holding that we lack jurisdiction over petitions for review of such motions.
To the contrary, Mata recognized this holding and left it intact. 135 S. Ct. at
2155    (acknowledging    holding     in   Enriquez-Alvarado    and    “[a]ssuming
arguendo” that it was correct); see also Lugo–Resendez, 831 F.3d at 343
(recognizing the continued existence of regulatory motions to reopen post-
Mata). Mata merely held that untimeliness of a motion to reopen could not
serve as a basis for depriving this court of jurisdiction if the alien argues that
he is entitled to equitable tolling of the statutory deadline. 135 S. Ct. at 2155.
Here, Tarango does not argue that the numerical limitation in the statute
should be equitably tolled, nor does he provide any other basis on which his
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noncompliance with this limit should be excused. Therefore, Mata does not
provide a basis upon which to exercise jurisdiction over Tarango’s petition for
review.
                            III. CONCLUSION
      The petition for review is DISMISSED for lack of jurisdiction.




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