Unreported / Non-Citable
Background
Keeran Persaud, a native and citizen of Guyana, sought review of a Board of Immigration Appeals decision arising from his removal proceedings. His removal order had been entered pursuant to a stipulated request for removal and a waiver of hearing.
An immigration judge denied Persaud’s motion to reopen as untimely and denied his motion to reconsider. The BIA summarily dismissed his appeal from the reopening ruling as untimely and affirmed the denial of reconsideration. Persaud then petitioned the Fifth Circuit for review.
The Court’s Holding
The Fifth Circuit denied the petition. Applying abuse-of-discretion review, it held that the BIA permissibly dismissed Persaud’s appeal from the denial of reopening because the appeal was untimely and he had not presented an equitable-tolling argument to the agency. Because the government invoked exhaustion, the court declined to consider his equitable-tolling argument raised for the first time on judicial review. It also rejected his due-process challenge because reopening is discretionary relief.
The court further held that the BIA did not abuse its discretion in affirming the denial of reconsideration. Circuit precedent foreclosed Persaud’s argument that the regulatory departure bar did not apply to his request for sua sponte reopening, and Kisor v. Wilkie did not displace that precedent. The agency was not required to follow out-of-circuit authority and had adequately addressed his Kisor argument.
Finally, the court rejected Persaud’s attacks on the underlying removal order. The record did not show that his stipulation was unknowing, involuntary, or unintelligent; no cited authority required an independent hearing into the stipulation’s validity; and he had not been removed in absentia. His defective notice to appear therefore did not invalidate the order on an in-absentia theory, and his related due-process claims also failed.
Key Takeaways
- A noncitizen who fails to present equitable tolling to the BIA may be unable to raise it later in the Fifth Circuit when the government invokes exhaustion.
- The Fifth Circuit continued to apply its precedent concerning the departure bar to requests for sua sponte reopening, notwithstanding Kisor.
- A stipulated removal order was not invalid where the record did not support claims that the stipulation was unknowing or involuntary, and the regulations did not require the asserted independent hearing.
Why It Matters
The decision underscores the procedural consequences of untimely immigration appeals and the importance of presenting equitable-tolling arguments to the agency. It also confirms the Fifth Circuit’s deferential review of motions to reopen and reconsider, both of which involve discretionary immigration relief.
The ruling additionally limits challenges to stipulated removal orders based on defective notices to appear when removal was not ordered in absentia, and it leaves existing Fifth Circuit departure-bar precedent in place.