Unreported / Non-Citable
Background
Veralicia Marroquin Calderon, a native and citizen of El Salvador, petitioned for review of a Board of Immigration Appeals decision denying her motion to reopen removal proceedings. She argued that the BIA abused its discretion by declining to equitably toll the motion’s filing deadline.
Marroquin Calderon filed the motion 17 years after her removal proceedings concluded. She also contended that reopening was warranted because she had a viable ineffective-assistance-of-counsel claim, that the BIA’s decision prevented her from reapplying for temporary protected status, and that the BIA should have reopened the case sua sponte.
The Court’s Holding
The Fifth Circuit held that Marroquin Calderon failed to show that the BIA abused its discretion in declining to apply equitable tolling. The court explained that she produced no evidence that she pursued her rights with due diligence during the 17 years between the conclusion of her removal proceedings and the filing of her motion to reopen.
Because she did not establish an abuse of discretion on equitable tolling, the court declined to consider her alternative arguments concerning ineffective assistance of counsel and temporary protected status. It also held that it lacked jurisdiction to review her contention that the BIA should have exercised its sua sponte reopening authority. The court therefore denied the petition in part and dismissed it in part.
Key Takeaways
- A noncitizen seeking equitable tolling of the deadline for a motion to reopen must present evidence of due diligence in pursuing her rights.
- When the petitioner fails to show that the BIA abused its discretion by refusing equitable tolling, the court may decline to reach alternative grounds for reopening.
- The Fifth Circuit lacks jurisdiction to review a claim that the BIA should have exercised its sua sponte authority to reopen removal proceedings.
Why It Matters
The decision underscores that a long delay in seeking reopening must be accompanied by evidence demonstrating due diligence before equitable tolling is available. Without that threshold showing, potentially substantive arguments for reopening—including ineffective assistance of counsel and consequences for temporary protected status—may go unaddressed.
It also confirms the jurisdictional limit on Fifth Circuit review of the BIA’s refusal to reopen a case sua sponte.