Dominguez v. Sessions
708 F. App'x 808
5th Cir.2017Background
- Suarez Dominguez, a Cuban who obtained LPR status under the Cuban Adjustment Act, was convicted in 2006 of a federal fraud conspiracy and ordered removed by an IJ because his conviction was an aggravated felony.
- In December 2014 he filed a motion to reopen to seek adjustment of status and a waiver of inadmissibility, citing the Fifth Circuit’s post-removal decision in Martinez v. Mukasey that allowed such waivers for aliens who adjusted status post-entry.
- The IJ denied the motion as untimely (filed more than 90 days after the final order) and the BIA dismissed his appeal, addressing his arguments as requests for the BIA to exercise sua sponte regulatory reopening authority.
- Suarez Dominguez argued to this court that the 90-day statutory deadline for a motion to reopen should be equitably tolled, making his statutory motion timely.
- The Fifth Circuit held it lacked jurisdiction because (1) Suarez Dominguez failed to exhaust the equitable-tolling claim before the BIA and (2) even if exhausted, the court lacks jurisdiction to review fact-intensive equitable-tolling determinations for aliens removable as aggravated felons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling applies to Suarez Dominguez’s 90-day statutory motion to reopen | Equitable tolling should apply because Martinez changed the law after his removal and he had no notice; tolling renders his motion timely | BIA characterized his filings as seeking sua sponte regulatory reopening and did not address equitable tolling; argues petitioner failed to raise tolling before BIA | Dismissed for lack of jurisdiction: claim not exhausted before BIA, so federal court cannot review |
| Whether the court has jurisdiction to review a fact-based equitable-tolling determination for an alien removable for an aggravated felony | Suarez contends court can review equitable tolling as a question affecting timeliness | Government contends factual equitable-tolling determinations are barred by 8 U.S.C. § 1252(a)(2)(C) for aggravated-felony removables | Even if exhausted, the court lacks jurisdiction because equitable tolling involves fact-intensive inquiry and § 1252(a)(2)(C) bars review |
Key Cases Cited
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (held aliens who adjusted to LPR status post-entry could seek waivers of inadmissibility)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (held equitable tolling may apply to the 90-day statutory deadline for motions to reopen)
- Enriquez-Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir. 2004) (explained courts lack jurisdiction to review discretionary regulatory motions to reopen)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (strict administrative exhaustion required; issues must be fairly presented to BIA)
- Claudio v. Holder, 601 F.3d 316 (5th Cir. 2010) (the appellant’s BIA brief is the operative document for exhaustion)
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) (BIA’s sua consideration of an unraised issue can satisfy exhaustion)
- Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004) (jurisdictional bar to review of final removal orders for aggravated-felony removable aliens extends to motions to reopen)