Chong Toua Vue v. Barr, No. 18-2595 (8th Cir. 2020)
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The Eighth Circuit denied petitions for review challenging the BIA's interpretation of the Supreme Court's decision in Esquivel–Quintana v. Sessions, 137 S. Ct. 1562 (2017). Petitioner asked the BIA to reopen his proceedings under 8 C.F.R. 1003.2 and 8 U.S.C. 1229a(c)(7), contending that Esquivel–Quintana narrowed what crimes qualify as "sexual abuse of a minor."
The court held that the time for filing a motion to reopen was not equitably tolled and thus petitioner's motion was untimely. In this case, petitioner did not raise a colorable constitutional claim, so under currently existing law, the court could not review the BIA's decision not to reopen his case on its own motion. The court declined to recognize a second exception permitting appellate review when the Board relies "on an incorrect legal premise."
Court Description: [Stras, Author, with Loken and Shepherd, Circuit Judges] Petition for Review - Immigration. Petitioner did not raise a colorable constitutional claim with respect to the BIA's decision not to reopen his case on its own motion, and the court could not review the decision; the court rejects the argument that it may review the decision under a theory that permits appellate review of the BIA's refusal to reopen sua sponte when the BIA relies "on an incorrect legal premise;" the time for filing a motion to reopen under 8 U.S.C. Sec. 1229a(c)(7)(C)(i) was not equitably tolled and the motion was untimely.
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