Anaya-Aguilar v. Holder, No. 11-3052 (7th Cir. 2012)
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Petitioner was ordered removed to Mexico in 2004 and appealed to the Board of Immigration Appeals, which affirmed. Almost two years later, he moved to reopen based on ineffective assistance of counsel. A motion to reopen must be made within 90 days of the final administrative order of removal, 8 U.S.C. 1229a(c)(7)(C)(i). He did not make an equitable-tolling argument nor provide sufficient factual support for the Board to consider that argument. The Board held that the motion was time-barred. Two weeks later, moved for reconsideration, attaching new evidence for an equitable tolling argument. The Board denied the motion, holding that the evidence was insufficient and that new evidence may not be submitted with a motion for reconsideration. The Seventh Circuit dismissed an appeal for lack of jurisdiction. While a petition for certiorari was pending, the Supreme Court held that Congress intended courts to review denials of motions to reopen. On remand, the Seventh Circuit reviewed the merits and upheld the Board. Petitioner unsuccessfully moved the Board to reopen under its sua sponte authority. On appeal, he conceded that his motion was numerically barred and argued that his case presented “exceptional circumstances” under which the Board usually grants such a motion. The Seventh Circuit dismissed. The motion was committed to the Board’s discretion by law and was unreviewable.
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