Refugio Avila-Perez v. Loretta Lynch , 672 F. App'x 402 ( 2016 )

Case: 15-60833 Document: 00513814008 Page: 1 Date Filed: 12/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60833
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 28, 2016
REFUGIO AVILA-PEREZ, also known as Refugio Avila,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 834 404
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Refugio Avila-Perez, a native and citizen of Mexico, petitions for review
of the order of the Board of Immigration Appeals (BIA) denying his motion to
reopen his removal proceedings. The BIA denied the motion as untimely and
declined to reopen the proceedings sua sponte. In his petition for review, Avila-
Perez argues that the BIA abused its discretion in denying his motion, erred
in finding that equitable tolling was not warranted, and should have exercised
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-60833
its sua sponte authority to reopen the removal proceedings. He asserts that he
acted with due diligence because he filed his motion immediately after he
consulted an attorney and that the BIA’s denial of the motion has resulted in
a violation of his due process rights.
We lack jurisdiction to review whether the BIA should have exercised its
sua sponte authority to reopen the case. See Ramos-Bonilla v. Mukasey, 543
F.3d 216, 219-20 (5th Cir. 2008). The BIA’s denial of the motion to reopen as
untimely is reviewed for an abuse of discretion. Lugo-Resendez v. Lynch, 831
F.3d 337, 340 (5th Cir. 2016); Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239
(5th Cir. 2010) (reviewing a determination that equitable tolling is not
warranted for an abuse of discretion). Motions to reopen removal proceedings
are disfavored, and the moving party must satisfy a heavy burden.
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006). To be entitled
to equitable tolling, an alien must show that he pursued his rights with
“reasonable diligence” and that an extraordinary circumstance beyond his
control prevented him from complying with the applicable deadline. Lugo-
Resendez, 831 F.3d at 344.
Avila-Perez has not shown that the BIA abused its discretion. Although
Avila-Perez relies on United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir.
2001), to show a change in the law, Chapa-Garza was decided in 2001, and he
did not file his motion to reopen until 2015. Even if he is correct that he could
not have filed the motion until 2012 when this court invalidated the post-
departure bar in Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012), he did
not file his motion until three years later in 2015. He states that he filed the
motion immediately after he consulted an attorney in January 2015, but he
does not explain why he could not have consulted an attorney at an earlier
date. Because he did not argue in his motion filed in the BIA that the delay
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No. 15-60833
should be excused because he had difficulty negotiating immigration laws and
was an illegal alien and because it did not prejudice the Department of
Homeland Security, these arguments are unexhausted and will not be
considered. See Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009). Further,
contrary to his argument, the change in the law concerning whether his DWI
conviction is an aggravated felony for removal purposes did not affect the
validity of the conviction. Finally, Avila-Perez has not shown that the BIA
violated his due process rights by denying his motion to reopen the
proceedings. See Ovalles v. Holder, 577 F.3d 288, 299 (5th Cir. 2009);
Altamirano-Lopez, 435 F.3d at 550-51.
For the foregoing reasons, Avila-Perez’s petition for review is
DISMISSED in part for lack of jurisdiction and DENIED in part.
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