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