Unreported / Non-Citable
Background
Alexis H. Moriano-Ospina, a Colombian citizen, entered the United States with his family at age twelve in 2008. Although their Notices to Appear allegedly omitted the hearing date and time, Moriano-Ospina’s mother later conceded removability. The family’s applications for asylum and withholding of removal were denied, the Board of Immigration Appeals affirmed in 2011, and the Fifth Circuit denied their petition for review in 2012.
Moriano-Ospina married a U.S. citizen in 2021. After ICE detained him during a routine check-in in March 2025, he consulted counsel and moved to reopen his removal proceedings so that he could seek cancellation of removal. He argued that the 90-day deadline should be equitably tolled because he was fifteen when the BIA entered the final removal order and did not previously know that reopening was possible. The BIA found neither extraordinary circumstances nor reasonable diligence and declined to reopen the proceedings sua sponte.
The Court’s Holding
The Fifth Circuit held that the BIA did not abuse its discretion by rejecting equitable tolling. Moriano-Ospina did not explain how his age when the removal order became final prevented him from filing for the ensuing fourteen years. His general lack of knowledge about possible legal remedies also did not establish reasonable diligence, particularly because he identified no efforts to investigate reopening before retaining counsel in 2025.
The court separately dismissed for lack of jurisdiction the challenge to the BIA’s refusal to reopen sua sponte. Such decisions are ordinarily committed entirely to the BIA’s discretion and provide no legal standard for judicial review. Although narrow review may be available for certain legal or constitutional errors, Moriano-Ospina did not establish that either exception applied. The court therefore denied the petition as to equitable tolling and dismissed it as to sua sponte reopening.
Key Takeaways
- Equitable tolling of the 90-day reopening deadline requires both reasonable diligence and an extraordinary circumstance that actually prevented timely filing.
- A petitioner’s youth when removal became final does not, without a causal explanation, justify a fourteen-year delay in seeking reopening.
- Ignorance of available legal remedies generally does not establish equitable tolling, and the Fifth Circuit ordinarily lacks jurisdiction to review the BIA’s refusal to reopen a case sua sponte.
Why It Matters
The decision underscores that noncitizens seeking to reopen long-final removal proceedings must present specific evidence connecting an extraordinary circumstance to the filing delay and must document reasonably diligent efforts to pursue relief. Acting promptly after eventually consulting counsel will not necessarily cure years of unexplained inaction.
It also confirms the narrow scope of appellate review over the BIA’s sua sponte reopening authority: absent a viable legal or constitutional error, disagreement with the BIA’s assessment of exceptional circumstances is not reviewable.