Juan Tarango v. Jefferson Sessions, III, 697 F. App'x 318

Juan Ramon Tarango, a Mexican national, was ordered deported in 1998 after a 1996 conviction for possession of <1 gram of cocaine; he alleges he was removed in 2009.
Tarango filed three motions to reopen before the BIA: (1) in 2012, arguing newly available circuit precedent supported cancellation of removal (denied); (2) in 2013, requesting the BIA sua sponte reopen based on changed law affecting §1182(c) waivers (denied; this court previously dismissed review for lack of jurisdiction); (3) in 2015, arguing Mata v. Lynch entitled him to equitable tolling of the 90‑day statutory deadline and requesting reopening to seek a waiver (denied as untimely and number‑barred; BIA also declined sua sponte reopening).
Statutory context: an alien generally may file one statutory motion to reopen within 90 days of a final removal order; the BIA separately has discretionary regulatory (sua sponte) power to reopen at any time.
Tarango urged equitable tolling only to excuse the time (90‑day) limit, not the statutory one‑motion numerical limit.
The Fifth Circuit framed Tarango’s third motion as a regulatory/sua sponte motion because it violated the statute’s numerical (third motion) and temporal (late) limits and Tarango offered no argument excusing the numerical bar.

Issue	Tarango's Argument	BIA/Respondent's Argument	Held
Whether the court has jurisdiction to review denial of Tarango’s third motion to reopen	Tarango: Mata permits equitable tolling of the 90‑day deadline, so this is a statutory motion and is reviewable	BIA: Motion violates statutory numerical and time limits and thus is a regulatory (sua sponte) motion not subject to judicial review	Dismissed for lack of jurisdiction over BIA’s denial of sua sponte reopening
Whether equitable tolling could save Tarango’s motion	Tarango: Mata supports equitable tolling of the filing deadline based on changed law	BIA: Even if time could be tolled, the motion is numerically barred and Tarango offered no basis to excuse that bar	Court did not decide the merits of tolling; equitable tolling of time limitation acknowledged in precedent but irrelevant because numerical bar remains unsatisfied
Whether Mata eliminated regulatory motions to reopen and thus preserved jurisdiction	Tarango: Mata abolished regulatory motions to reopen, making all motions statutory and reviewable	BIA: Mata did not abolish regulatory motions; it only addressed equitable tolling of the time limit for statutory motions	Court: Mata did not eliminate regulatory motions; prior precedent (Enriquez‑Alvarado) leaving regulatory motions unreviewable remains intact

Lugo–Resendez v. Lynch, 831 F.3d 337 (5th Cir.) (distinguishing statutory and regulatory motions to reopen; equitable tolling applies to time limit)
Enriquez‑Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir.) (court lacks a legal standard to review BIA’s denial of sua sponte reopening)
Mata v. Lynch, 135 S. Ct. 2150 (Supreme Court) (equitable tolling may render an otherwise untimely statutory motion to reopen reviewable)
Kucana v. Holder, 558 U.S. 233 (Supreme Court) (jurisdictional principles governing review of agency decisions)
Rodriguez v. Holder, 705 F.3d 207 (5th Cir.) (jurisdictional review standards for petitions challenging BIA decisions)