Norberto Colon-Lorenzo v. Loretta E. Lynch
670 F. App'x 477
| 9th Cir. | 2016Background
- Colon-Lorenzo was ordered deported on February 18, 1993; his counsel failed to timely appeal and his pro se late appeal was dismissed on November 18, 1993.
- The BIA’s dismissal was mailed directly to Colon-Lorenzo; he received the dismissal and had the necessary information thereafter.
- Colon-Lorenzo did not seek relief or further action from 1993 until February 8, 2013, when he asked the BIA to reconsider and reopen proceedings.
- During the intervening period he was removed on January 31, 1998 and then illegally reentered the United States on or about February 1, 1998.
- The BIA denied Colon-Lorenzo’s 2013 motion as untimely and found he failed to show due diligence for equitable tolling; DHS properly reinstated the 1993 removal order under 8 U.S.C. § 1231(a)(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling saves Colon-Lorenzo’s untimely motion to reopen/reconsider | Colon-Lorenzo contends counsel’s failures and other circumstances justify equitable tolling | BIA/DHS argue Colon-Lorenzo had notice and failed to act with due diligence for nearly 20 years | Denied — petitioner failed to show due diligence; equitable tolling not available |
| Whether DHS properly reinstated the 1993 removal order after illegal reentry | Colon-Lorenzo implicitly argues the reinstatement should not apply to bar reopening | DHS asserts reinstatement under § 1231(a)(5) is mandatory upon illegal reentry after removal | Denied — reinstatement was proper and bars reopening or review |
Key Cases Cited
- Avagyan v. Holder, 646 F.3d 672 (9th Cir.) (equitable tolling requires due diligence in discovering counsel’s errors)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir.) (equitable tolling permitted where deception or error prevents timely filing if petitioner is diligent)
- Singh v. Gonzales, 491 F.3d 1090 (9th Cir.) (lack of prompt action after suspicion of fraud defeats equitable tolling)
- Ontiveros–Lopez v. INS, 213 F.3d 1121 (9th Cir.) (BIA decisions reviewed for arbitrary, irrational, or contrary to law)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir.) (factual findings supporting reinstatement after removal and reentry are conclusive)
- Morales–Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.) (discusses standards for reinstatement and conclusive findings)