Carlos Londono-Gonzalez v. Matthew Whitaker, No. 16-60766 (5th Cir. 2018)
Annotate this Case
The court issued a subsequent related opinion or order on October 26, 2020.
Download PDF
Case: 16-60766 Document: 00514758263 Page: 1 Date Filed: 12/12/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-60766 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 12, 2018 CARLOS ALBERTO LONDONO-GONZALEZ, Lyle W. Cayce Clerk Petitioner v. MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A037 584 356 Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * Carlos Alberto Londono-Gonzalez, a native and citizen of Columbia, seeks review of the decision of the Board of Immigration Appeals (BIA) 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 90day deadline for such motions established by 8 U.S.C. § 1227(c)(7). LondonoGonzalez was ordered removed from the United States in 2000 pursuant to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-60766 Document: 00514758263 Page: 2 Date Filed: 12/12/2018 No. 16-60766 8 U.S.C. § 1227(a)(2)(A)(iii) based on his federal drug trafficking convictions, which were aggravated felonies. In 2016, Londono-Gonzalez 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. 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, 772-74 (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, finding under Lugo-Resendez v. Lynch, 83, F.3d 337, 339 (5th Cir. 2016), which was decided while his BIA appeal was pending, that LondonoGonzalez 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. We have jurisdiction to review the denial of a motion to reopen seeking equitable tolling of the 90-day deadline to file the motion. Mata v. Lynch, 135 S. Ct. 2150, 2154-55 (2015); Penalva v. Sessions, 884 F.3d 521, 523 (5th Cir. 2018). The INA, 8 U.S.C. § 1252(a)(2)(C), however, strips us of jurisdiction to review the denial of such a motion if the alien is removable because he committed an offense covered in 8 U.S.C. §§ 1227(a)(2)(A)(iii). Penalva, 884 F.3d at 523. Section 1252(a)(2)(C)’s jurisdictional stripping provision, however, “‘does not extend to constitutional claims or questions of law raised upon a petition for review.’” Penalva, 884 F.3d at 523-24 (quoting § 1252(a)(2)(D)). We review de novo whether we have jurisdiction. Id. at 523. 2 Case: 16-60766 Document: 00514758263 Page: 3 Date Filed: 12/12/2018 No. 16-60766 Because Londono-Gonzalez was removed pursuant to § 1227(a)(2)(A)(iii), we lack jurisdiction to review his claims other than for questions of law or constitutional claims. See Penalva, 884 F.3d at 523-24; §1252(a)(2)(C). Londono-Gonzalez argues that the BIA erred in determining that Vartelas and Carranza-De Salinas were the operative cases from which to measure his due diligence efforts. His argument is a legal question over which we have jurisdiction. See Penalva, 884 F.3d at 524. As the BIA found, because Carranza-De Salinas directly affected Londono-Gonzalez’s eligibility for § 212(c) relief, the BIA’s subsequent decision in Abdelghany conferred no additional benefit on him and did not constitute a change in the law for purposes of measuring due diligence. Accordingly, Londono-Gonzalez’s petition is DENIED IN PART. Additionally, Londono-Gonzalez argues that the BIA applied the wrong due diligence standard and that he should be given an opportunity to further establish due diligence in light of Lugo-Resendez. Londono-Gonzalez’s arguments amount to nothing more than his disagreement with the application of the due diligence standard thus constituting factual questions over which we have no jurisdiction. See Penalva, 884 F.3d at 526. Accordingly, Londono-Gonzalez’s petition is DISMISSED IN PART for lack of jurisdiction. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
