Unreported / Non-Citable
Background
Sara Laritza Lopez-Martinez, a native and citizen of Cuba, sought review of a Board of Immigration Appeals order summarily dismissing her administrative appeal as untimely. The BIA also rejected her contention that the filing deadline should be equitably tolled.
Lopez-Martinez additionally challenged the denial of a motion for reconsideration and sought to rely on evidence submitted with that motion. She had not, however, filed a petition for review of the reconsideration decision.
The Court’s Holding
The Fifth Circuit denied the petition for review. It held that the record contained no evidence of exceptional circumstances warranting equitable tolling and that Lopez-Martinez had not shown that the BIA abused its discretion by summarily dismissing her untimely appeal.
The court declined to consider either the merits of the reconsideration ruling or the evidence submitted in support of reconsideration because Lopez-Martinez had not petitioned for review of that separate decision. It also denied the government’s motion for summary disposition—or, alternatively, for additional time to file a brief—because summary disposition was inappropriate.
Key Takeaways
- An untimely BIA appeal will not receive equitable tolling without record evidence of exceptional circumstances.
- The Fifth Circuit found no abuse of discretion in the BIA’s summary dismissal of Lopez-Martinez’s appeal.
- A separate BIA reconsideration ruling is not before the court unless the petitioner timely seeks review of that ruling.
Why It Matters
The decision underscores that noncitizens seeking equitable tolling must develop supporting evidence in the administrative record. Merely invoking exceptional circumstances is insufficient to overcome an untimely BIA appeal.
It also highlights an important procedural rule: litigants generally must file a separate petition for review to place a later reconsideration decision—and evidence submitted with that motion—before the court of appeals.