Unreported / Non-Citable
Background
Alexis H. Moriano-Ospina, a Colombian citizen, entered the United States with his family at age twelve in 2008. Their Notices to Appear allegedly omitted the hearing date and time. After Moriano-Ospina’s mother conceded removability, the family unsuccessfully sought asylum and withholding of removal. The Board of Immigration Appeals affirmed the removal decision in 2011, when Moriano-Ospina was fifteen, and the Fifth Circuit later denied judicial review.
Moriano-Ospina married a U.S. citizen in 2021. In 2025, his wife filed an I-130 petition, and Immigration and Customs Enforcement detained him during a routine check-in. After consulting counsel, he moved to reopen his removal proceedings so that he could apply for cancellation of removal. Although the motion came years after the 90-day deadline, he sought equitable tolling based on his youth when removal was ordered and his lack of knowledge about reopening. The BIA denied the motion and declined to reopen the proceedings sua sponte.
The Court’s Holding
The Fifth Circuit held that the BIA did not abuse its discretion in refusing to equitably toll the filing deadline. Moriano-Ospina did not explain how his age at the time of the removal order prevented him from filing for fourteen years. His youth might have accounted for an initial delay, the court reasoned, but did not by itself establish an extraordinary circumstance that prevented timely filing throughout that period.
The court also held that Moriano-Ospina failed to show reasonable diligence. His lack of awareness that marriage to a U.S. citizen could provide a potential avenue for relief did not justify tolling, and he identified no efforts to investigate reopening before retaining counsel in 2025. The court therefore denied the petition as to equitable tolling. It dismissed the challenge to the BIA’s refusal to reopen sua sponte because such decisions are generally unreviewable, and Moriano-Ospina had not established an applicable legal-error or constitutional-error exception.
Key Takeaways
- A noncitizen seeking equitable tolling of the 90-day deadline for a motion to reopen must establish both reasonable diligence and an extraordinary circumstance that actually prevented timely filing.
- Youth at the time of a removal order does not justify a lengthy later delay without facts connecting that circumstance to the entire period of untimeliness.
- The Fifth Circuit generally lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte unless a recognized legal or constitutional error supplies a basis for review.
Why It Matters
The decision underscores the fact-specific showing required to obtain equitable tolling in immigration proceedings. Acting promptly after eventually consulting counsel is not enough when the petitioner does not account for years of inactivity or identify earlier efforts to investigate available relief.
It also reinforces the narrow scope of appellate review over the BIA’s sua sponte reopening authority. Characterizing circumstances as exceptional does not create jurisdiction where the challenge concerns only the Board’s discretionary refusal to reopen.