Zhi Xiong Liu v. Gonzales , 166 F. App'x 159 ( 2006 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT February 13, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 03-60764
____________________
ZHI XIONG LIU,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General of the United States,
Respondent.
__________________
PETITION FOR REVIEW FROM A FINAL ORDER OF
THE BOARD OF IMMIGRATION APPEALS
__________________
Before GARWOOD, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Petitioner Liu challenges the order of the Board of
Immigration Appeals affirming the immigration judge’s denial
of Liu’s motion to reopen his deportation proceedings in order
to adjust his status as untimely.2
Zhi Xiong Liu, a Chinese citizen, entered the United
States from Mexico without inspection sometime around May 5,
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
Liu also filed several motions to reconsider and to reopen
proceedings with the BIA following its affirmation of the
immigration judge’s decision. Each was denied. Liu does not
now appeal the denial of those motions, nor does he appeal the
initial denial of his asylum application or the voluntary
departure order.
1
1992. In August of 1993 Liu applied for asylum based on
feared political persecution in China, and in May of 1996, his
application was referred to an immigration judge. The
immigration judge held a hearing in Liu’s case on July 6,
1998, and denied Liu’s application for asylum.3 The
immigration judge granted Liu a 180-day voluntary departure
period, expiring on January 4, 1999. Liu failed to depart
voluntarily.
On June 14, 2002, nearly four years after the immigration
judge’s decision, Liu filed a motion to reopen his
proceedings, asking the immigration judge to adjudicate the
visa and residency applications still pending with the INS.
The immigration judge denied Liu’s motion as untimely, and the
Bureau of Immigration Appeals (“BIA”) affirmed without
opinion. Because Liu’s motion to reopen his case was filed
untimely, he failed to exhaust his administrative remedies,
which precludes this court from exercising jurisdiction over
3
In December of 1997, before the immigration judge addressed
Liu’s application, Liu married a United States citizen, and in
January of 1998, filed forms I-130 and I-485 with the INS.
Liu notes in his brief that in December of 2003, after the BIA
affirmed the immigration judge’s denial of his motion to
reopen, Liu received notice that his I-130 application had
been approved. Although we dismiss Liu’s pending petition for
lack of jurisdiction, doing so will not preclude Liu for
filing a future motion to reopen with either the immigration
judge or the BIA should he meet the requirements to do so.
See 8 C.F.R. § 1003.23(b)(4)(iv)(2003) (excluding motions to
reopen joined by all parties from time and numerical
limitations).
2
his claims. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,
248 (5th Cir. 2004); see also Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001).
Liu argues that limitations period for a motion to reopen
should be equitably tolled. Although equitable tolling is a
“discretionary doctrine that turns on the facts and
circumstance of a particular case,” we ordinarily “draw on
general principles to guide when equitable tolling is
appropriate.” Fierro v. Cockrell, 294 F.3d 674 (5th Cir.
2002). Equitable tolling is not invoked by “garden variety
claims of excusable neglect.” Rashidi v. American President
Lines, 96 F.3d 124 (5th Cir. 1996). Thus, equitable tolling
will be warranted only in “rare and exceptional
circumstances.” U.S. v. English, 400 F.3d 273, 275 (5th Cir.
1995). Liu offers no explanation for his failure to file his
motion within the prescribed 90-day period. See 8 C.F.R. §
1003.23(b)(1)(2003).
Liu also argues that the BIA should have exercised its
sua sponte authority to reopen his case. However, he failed
to make that argument to either the immigration judge or the
BIA. We are therefore without jurisdiction to consider the
issue on appeal. See Wang, 260 F.3d at 453.
The Petition for Review is DISMISSED.
3