Londono-Gonzalez v. Whitaker, No. 16-60766 (5th Cir. 2020)

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Two years after the Fifth Circuit held that it lacked jurisdiction to review the denial of petitioner's motion to reopen because he had committed an offense covered in 8 U.S.C. 1227(a)(2)(A)(iii), the Supreme Court issued Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). In Guerrero-Lasprilla, the Court held that even in cases involving aliens who are removable for having committed certain crimes, courts of appeals have jurisdiction to consider constitutional claims or questions of law. Therefore, the Supreme Court concluded that courts of appeals have jurisdiction to determine whether an undisputed set of facts demonstrates diligence on the part of an alien requesting equitable tolling.

On remand from the Supreme Court, the Fifth Circuit held that the BIA did not err in measuring petitioner's diligence from the issuance of Carranza-De Salinas v. Holder, 700 F.3d 768, 773–75 (5th Cir. 2012), in which this court held that the repeal of former Section 212(c) of the Immigration and Nationality Act could not be retroactively applied to aliens in petitioner's position. The court rejected petitioner's contention that the extraordinary circumstances that stood in his way was the fact that he was prohibited from filing a motion to reopen prior to this court's decision in Lugo-Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016). The court explained that, contrary to petitioner's view, Lugo-Resendez resolved an open question. However, it did not constitute an intervening change in binding precedent. Rather, the intervening changes that affected petitioner's ability to obtain relief were Vartelas v. Holder, 566 U.S. 257, 273–75 (2012), and Carranza-De Salinas.

This opinion or order relates to an opinion or order originally issued on December 12, 2018.

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Case: 16-60766 Document: 00515615796 Page: 1 Date Filed: 10/26/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 26, 2020 No. 16-60766 Lyle W. Cayce Clerk Carlos Alberto Londono-Gonzalez, Petitioner, versus William P. Barr, United States Attorney General, * Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A037 584 356 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Higginbotham, Elrod, and Duncan, Circuit Judges. Jennifer Walker Elrod, Circuit Judge: In Londono-Gonzalez v. Whitaker, this court held that it lacked jurisdiction to review the denial of Carlos Alberto Londono-Gonzalez’s motion to reopen because Londono-Gonzalez had “committed an offense * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General William P. Barr is automatically substituted for former Acting Attorney General Matthew G. Whitaker as Respondent. Case: 16-60766 Document: 00515615796 Page: 2 Date Filed: 10/26/2020 No. 16-60766 covered in 8 U.S.C. §§ 1227(a)(2)(A)(iii).” 744 F. App’x 898, 899 (5th Cir. 2018). Two years later, the Supreme Court held that even in cases involving aliens who are “removable for having committed certain crimes,” courts of appeals have jurisdiction to consider “constitutional claims or questions of law.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020) (quoting 8 U.S.C. § 1252(a)(2)(D)). Accordingly, the Supreme Court concluded, courts of appeals have jurisdiction to determine whether an undisputed set of facts demonstrates diligence on the part of an alien requesting equitable tolling. See id. In line with that holding, that court granted certiorari in Londono-Gonzalez, vacated the judgment, and remanded “for further consideration in light of Guerrero-Lasprilla.” See Londono-Gonzalez v. Barr, 140 S. Ct. 2561 (2020). After remand, we requested and received supplemental briefing. We now address the diligence issue. Carlos Alberto Londono-Gonzalez, a native and citizen of Colombia who was removed from the United States as a criminal alien more than twenty years ago, seeks review of the decision of the Board of Immigration Appeals denying his motion to reopen his removal proceedings based on its finding that he failed to establish the due diligence necessary to warrant equitable tolling of the 90-day deadline for such motions established by 8 U.S.C. § 1229a(c)(7)(C). Londono-Gonzalez was ordered removed from the United States in 2000 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) based on his federal drug trafficking convictions, which were aggravated felonies. In 2016, more than four months prior to the issuance of our decision in Lugo-Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016), LondonoGonzalez moved to reopen his removal proceedings based on the BIA’s decision in Matter of Abdelghany, 26 I. & N. Dec. 254 (2014). In Abdelghany, the BIA addressed the impact of the Supreme Court’s decision in INS v. St. 2 Case: 16-60766 Document: 00515615796 Page: 3 Date Filed: 10/26/2020 No. 16-60766 Cyr, 533 U.S. 289, 326 (2001), and its progeny, including Vartelas v. Holder, 566 U.S. 257, 273–75 (2012), and Carranza-De Salinas v. Holder, 700 F.3d 768, 773–75 (5th Cir. 2012), “upon individuals convicted after trial in order to provide a uniform nationwide rule” regarding the availability of relief under former § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994). 26 I. & N. Dec. at 266–69 & n.13 (quotation). The BIA dismissed Londono-Gonzalez’s appeal from the immigration judge’s denial of his motion, concluding under Lugo-Resendez, which was decided while his BIA appeal was pending, that Londono-Gonzalez had not shown the requisite due diligence to warrant equitable tolling given that he waited more than three years after Carranza-De Salinas was decided to file his motion to reopen. 744 F. App’x 899. As Londono-Gonzalez frames the question, “all parties agree on the facts, but only differ on the following legal question—when to measure diligence.” We agree with that framing. This court reviews factual findings for substantial evidence, and legal conclusions de novo. Morales v. Sessions, 860 F.3d 812, 816–17 (5th Cir. 2017). Petitioner contends that diligence should be measured from this court’s decision in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016), where we held that the deadline to file a motion to reopen is subject to equitable tolling. See 831 F.3d at 344. The government contends that we should measure diligence from Carranza-De Salinas, in which this court held that the repeal of former § 212(c) of the Immigration and Nationality Act could not be retroactively applied to aliens in Londono-Gonzalez’s position. See Carranza-De Salinas, 700 F.3d at 774–75. An alien may equitably toll the time period to file a motion to reopen if he demonstrates that (1) he “has been pursuing his rights diligently” and (2) an extraordinary circumstance prevented him from timely filing. Lugo- 3 Case: 16-60766 Document: 00515615796 Page: 4 Date Filed: 10/26/2020 No. 16-60766 Resendez, 831 F.3d at 344. Londono-Gonzalez contends that the extraordinary circumstance that stood in his way was the fact that he “was prohibited from filing a motion to reopen” prior to this court’s decision in Lugo-Resendez. We disagree. In the first place, this argument is contradicted by the facts of this case. Londono-Gonzalez actually filed his motion to reopen more than four months before Lugo-Resendez was decided, and he was not prohibited from making that filing. Moreover, uncertain legal terrain does not create an obstacle that stands in the way of an individual meeting the motion to reopen deadline. Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 757 (2016). Londono-Gonzales is correct that, prior to Lugo-Resendez, this court construed equitable tolling requests as unreviewable invitations for the BIA to sua sponte reopen a petitioner’s removal proceeding. See Lugo-Resendez, 831 F.3d at 343. But regardless of how this court characterized such requests on judicial review, there was no case law saying that the BIA could not equitably toll the motion to reopen time limitation. Londono-Gonzalez also assumes that he could not have been expected to file a motion to reopen prior to Mata v. Lynch, 576 U.S. 143, 150–51 (2015), in which the Supreme Court reversed this circuit’s characterization of equitable tolling requests. But prior to Mata and Lugo-Resendez, petitioners in this circuit were regularly asking the BIA to equitably toll the motion to reopen limitations period. See, e.g., Villatoro-Avila v. Holder, 622 F. App’x 451, 452 (5th Cir. 2015) (per curiam); Singh v. Holder, 584 F. App’x 184, 184 (5th Cir. 2014) (per curiam); Ngamnimitthum v. Holder, 425 F. Appx. 384, 385 (5th Cir. 2011) (per curiam). Nothing “stood in [petitioner’s way]” that “prevented timely filing.” See Lugo-Resendez, 831 F.3d at 344. 4 Case: 16-60766 Document: 00515615796 Page: 5 Date Filed: 10/26/2020 No. 16-60766 Contrary to Londono-Gonzalez’s view, Lugo-Resendez resolved an open question; it did not constitute an “intervening change in binding precedent.” See Silverio-Da Silva v. Lynch, 675 F. App’x 487, 488 (5th Cir. 2017). The intervening changes that affected Londono-Gonzalez’s ability to obtain relief were Vartelas and Carranza-De Salinas. And Londono- Gonzalez did not seek to reopen his proceedings until three-and-a-half years after those decisions were issued. The BIA did not err in measuring Londono-Gonzalez’s diligence from the issuance of Carranza-De Salinas. Londono-Gonzalez’s petition is DENIED. 5

Primary Holding

On remand from the Supreme Court, the Fifth Circuit held that the BIA did not err in measuring petitioner's diligence from the issuance of Carranza-De Salinas v. Holder, in which the court held that the repeal of former Section 212(c) of the Immigration and Nationality Act could not be retroactively applied to aliens in petitioner's position.

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