Unreported / Non-Citable
Background
Ana Ailed Quesada-Ladron De Guevara, a native and citizen of Cuba, was ordered removed in absentia after failing to appear at her immigration hearing. She subsequently sought to reopen her proceedings under 8 U.S.C. § 1229a(b)(5)(C)(i), which permits rescission of an in absentia removal order where the alien demonstrates both that the motion was filed within the statutory limitations period and that extraordinary circumstances caused the failure to appear. An immigration judge denied the motion, and the Board of Immigration Appeals (BIA) dismissed her appeal.
Quesada-Ladron De Guevara petitioned the Fifth Circuit for review, arguing that she had established extraordinary circumstances excusing her absence. She also raised a due process challenge to the denial of her motion to reopen and contended that equitable tolling should apply to excuse the untimeliness of her filing.
The record showed that Quesada-Ladron De Guevara had Migrant Protection Protocol documents and a notice of hearing, both of which contained contact information for the immigration court. Despite knowing she had missed her hearing, she did not contact the court within the 180-day limitations period, waited more than two years before contacting an attorney, and ultimately filed her motion to reopen five years after the limitations period had expired.
The Court’s Holding
The Fifth Circuit denied the petition for review on all grounds. The court held that Quesada-Ladron De Guevara forfeited review of the BIA’s dispositive timeliness ruling because she failed to address it in her brief — she argued only that she had shown extraordinary circumstances, without challenging the BIA’s separate and independently sufficient finding that her motion was untimely. Under circuit precedent, an argument not raised before the appellate court is forfeited.
The court also rejected her due process claim, finding it unexhausted because she had not raised it in her BIA brief. Separately, the court noted that even if considered, the claim would fail on the merits, as Fifth Circuit precedent holds that denial of a motion to reopen cannot violate due process because the decision is purely discretionary and does not implicate a liberty interest.
Finally, the court found that the BIA did not abuse its discretion in denying equitable tolling. Quesada-Ladron De Guevara failed to demonstrate due diligence: she possessed court contact information throughout the relevant period, knew she had missed her hearing, yet made no effort to contact the immigration court, waited years to retain counsel, and filed her motion five years after the limitations period had run.
Key Takeaways
- A petitioner who challenges only the “extraordinary circumstances” prong of the in absentia reopening standard — without contesting the BIA’s separate finding of untimeliness — forfeits appellate review of the dispositive timeliness ruling.
- Due process challenges to BIA decisions must be exhausted at the administrative level; failure to raise them in the BIA brief bars consideration by the Fifth Circuit.
- Equitable tolling of the 180-day reopening deadline requires a showing of due diligence; a petitioner who has court contact information, knows she missed her hearing, and nonetheless waits years to act cannot establish the requisite diligence.
Why It Matters
This decision reinforces the strict procedural requirements governing motions to reopen in absentia removal orders. Counsel representing aliens in similar postures must ensure that every independent basis for the BIA’s ruling is challenged on appeal, because failing to address even one dispositive ground — such as timeliness — can doom the petition regardless of the merits of other arguments.
The case also illustrates the high bar for equitable tolling in the immigration context. Possession of court contact information, standing alone, may be sufficient to defeat a tolling claim even where the petitioner lacked counsel, signaling that courts expect aliens to take basic self-help steps to protect their right to a hearing.