Jose Villatoro-Avila v. Eric Holder, Jr. , 622 F. App'x 451 ( 2015 )

Case: 14-60330 Document: 00513265505 Page: 1 Date Filed: 11/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 10, 2015
No. 14-60330
Summary Calendar Lyle W. Cayce
Clerk
JOSE MARIA VILLATORO-AVILA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 968 520
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Jose Maria Villatoro-Avila petitioned this court for review of the Board
of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal
proceedings. He argued primarily that the BIA abused its discretion in refusing
to equitably toll the deadline to file motions to reopen. We denied his petition
in part and dismissed it in part for lack of jurisdiction, holding that the BIA
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-60330 Document: 00513265505 Page: 2 Date Filed: 11/10/2015
No. 14-60330
had complete discretion to deny Villatoro-Avila’s equitable tolling request.
Villatoro-Avila v. Holder, 598 F. App’x 278 (5th Cir. 2015) (per curiam).
Villatoro-Avila filed a motion for panel and en banc rehearing. We then
stayed further proceedings and stayed deportation pending the Supreme
Court’s decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), in which the issue
was whether courts of appeals have jurisdiction to review the BIA’s refusals to
equitably toll the deadline for motions to reopen.
In June, the Supreme Court decided Mata, holding that courts of appeals
do have jurisdiction over the denials at issue. Id. at 2155-56. Counsel for the
government then filed a status report advising that “remand of the case may
be warranted” and “request[ing] that the Court continue to hold the case in
abeyance for an additional fourteen days, to allow her to determine whether to
file such a motion.” The government did not, however, file a motion or advise
that it would not be filing one. Nor did Villatoro-Avila move for any substantive
relief. 1 In July, we removed this case from abeyance.
Now before us is Villatoro-Avila’s rehearing petition, which we treat as
a petition for panel rehearing. We GRANT that petition in part and, in light of
Mata, vacate our prior opinion to the extent that it dismissed Villatoro-Avila’s
petition for lack of jurisdiction. See id. at 2155-56. But we DENY his petition
for review because the BIA did not abuse its discretion in refusing to equitably
toll the deadline to move to reopen his removal proceedings. United States v.
English, 400 F.3d 273, 275 (5th Cir. 2005) (noting that “equitable tolling is only
appropriate in ‘rare and exceptional circumstances’”). Villatoro-Avila did not
exercise diligence in bringing his ineffective assistance claim: By the time he
1 In July, Villatoro-Avila retained new counsel. Simultaneously, the court received
Villatoro-Avila’s pro se motion noting that he was seeking assistance of counsel and
requesting that the court continue to hold the case in abeyance. Because counsel had entered
an appearance by the time the court received Villatoro-Avila’s motion, the clerk’s office did
not file the motion and we did not act on the motion.
2
Case: 14-60330 Document: 00513265505 Page: 3 Date Filed: 11/10/2015
No. 14-60330
brought it, fourteen years had passed since his removal proceedings, the
removal order had been reinstated three times, and he had been prosecuted
twice for illegal reentry.
The petition for review is DENIED.
3