Angelica Gonzalez-Cantu v. Jefferson Sessions, III
866 F.3d 302
| 5th Cir. | 2017Background
- Gonzalez-Cantu, a Mexican national and lawful permanent resident since 1992, was removed in 2000 after a state DWI conviction the government treated as an aggravated felony (crime of violence).
- She allegedly returned to Mexico after removal and filed a motion to reopen in March 2015 under 8 U.S.C. § 1229a(c)(7), asserting Chapa-Garza rendered Texas DWI not a crime of violence.
- Her motion was filed well beyond the 90-day statutory limit; she argued equitable tolling applied because the "departure bar" prevented filing until Garcia-Carias (Sept. 2012) recognized a right to file while abroad.
- The IJ denied the motion as untimely for failing to explain the long delay; the BIA affirmed, finding no diligence to support equitable tolling and declining sua sponte reopening.
- Gonzalez-Cantu alternatively argued the removal was a "gross miscarriage of justice;" the BIA rejected this because the removal order was lawful under then-prevailing precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the untimely statutory motion to reopen should be equitably tolled | Gonzalez-Cantu: Tolling should run until she discovered Garcia-Carias (2012) because the departure bar prevented earlier filing | Government: Motion filed far beyond 90 days; she failed to show diligence or when she discovered Garcia-Carias | Denied: She failed to prove when she learned of the case or that she pursued rights diligently, so equitable tolling not shown |
| Whether the IJ/BIA abused discretion by refusing to reopen sua sponte | Gonzalez-Cantu: BIA/IJ should have reopened under their regulatory authority | Government: Sua sponte reopening is discretionary and not reviewable | Dismissed for lack of jurisdiction: Court cannot review discretionary denial of sua sponte reopening |
| Whether the removal was a "gross miscarriage of justice" justifying relief despite untimeliness | Gonzalez-Cantu: Removal now invalid because Texas DWI is not a COV | Government: Removal was lawful under controlling precedent at the time | Denied: Removal was not clearly unlawful at the time; claim fails |
| Standard for equitable tolling of motions to reopen | N/A (procedural/legal standard at issue) | N/A | Applied Lugo‑Resendez: tolling requires diligence and an extraordinary circumstance preventing timely filing |
Key Cases Cited
- United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (held Texas DWI is not a crime of violence)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (aliens have the right to file motions to reopen regardless of departure)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (motions to reopen are subject to equitable tolling; specifies two-part tolling test)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (abuse-of-discretion standard for reviewing denial of motions to reopen)
- Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008) (discretionary sua sponte reopening is not reviewable)