Sergio Lugo-Resendez v. Loretta Lynch
2016 U.S. App. LEXIS 13752
| 5th Cir. | 2016Background
- Lugo-Resendez, a Mexican national and lawful permanent resident since 1973, pleaded guilty in Texas (Dec. 2002) to possession of a controlled substance (<1 gram); state court suspended a two-year sentence and imposed five years community supervision.
- The government initiated removal proceedings in Feb. 2003; Lugo-Resendez did not contest removability and an order of removal entered in Mar. 2003 alleging his conviction was an "aggravated felony."
- In July 2014 he filed a motion to reopen under 8 U.S.C. § 1229a(c)(7), arguing Lopez v. Gonzales (2006) later held simple possession is not an aggravated felony, and thus the basis for removal was invalid.
- The government argued the motion was untimely (more than 90 days after the final removal order) and that a regulatory "departure bar" (8 C.F.R. § 1003.23(b)(1)) prevents departed aliens from filing motions to reopen in Immigration Court.
- Lugo-Resendez argued he could not file earlier because he had departed in 2003 and only learned of Garcia-Carias (this circuit’s decision allowing departed aliens to file statutory motions to reopen) in 2014; he also asserted equitable tolling of the 90-day statutory deadline.
- The IJ denied the motion as untimely and applied the departure bar; the BIA affirmed without opinion. The Fifth Circuit granted review, held the BIA abused its discretion by ignoring the equitable tolling argument, and remanded for the BIA to decide tolling.
Issues
| Issue | Lugo-Resendez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the departure bar strips Immigration Court/BIA of jurisdiction over statutory motions to reopen filed by departed aliens | Garcia-Carias entitles departed aliens to file statutory motions to reopen under § 1229a(c)(7) despite the departure bar | Departure bar applies; if motion is untimely it must be treated as regulatory motion and barred under Navarro-Miranda | Where a motion is timely (or equitably tolled) it is statutory and Garcia-Carias prevents application of the departure bar; BIA abused discretion by ignoring tolling argument |
| Whether Lugo-Resendez’s motion is untimely under the 90‑day statutory deadline | He sought equitable tolling because he only learned of Garcia-Carias years later and promptly acted upon learning | Motion filed >90 days after removal order, so untimely; thus should be treated as regulatory motion and barred | Court held equitable tolling is available for § 1229a(c)(7) deadlines but remanded for BIA to apply the equitable tolling standard to the facts rather than deciding tolling itself |
| Whether motions that fail statutory requirements must be recharacterized as regulatory motions to reopen | If equitable tolling makes the motion timely, it remains a statutory motion; recharacterization is inappropriate when tolling might apply | Ovalles supports recharacterizing untimely motions as regulatory when motion is conceded untimely | Court rejected treating timeliness as conclusive; failure to concede timeliness requires BIA to consider equitable tolling before recharacterizing |
| Standard and scope for equitable tolling of the 90‑day deadline | Equitable tolling should be applied in some cases, given circuit consensus and fairness concerns for departed, non‑English‑speaking, low‑resource aliens | Government opposed tolling here because delay was long and motion filed after many years | Court joined other circuits holding the 90‑day statutory deadline is subject to equitable tolling and remanded for the BIA to apply the two‑part equitable tolling test (diligence + extraordinary circumstance) to the record |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (2008) (recognizing statutory right to file one motion to reopen)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (holding simple possession is not an aggravated felony under INA)
- Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012) (holding departure bar invalid as applied to statutory motions to reopen)
- Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (treated facially untimely statutory motion as concededly untimely and constrained to regulatory relief)
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (upholding departure bar as applied to regulatory motions to reopen)
- Mata v. Holder, 135 S. Ct. 2150 (2015) (rejecting rule that recharacterized equitable‑tolling requests as discretionary sua sponte reopenings)
- Holland v. Florida, 560 U.S. 631 (2010) (articulating the two‑part equitable tolling test)
- Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (2016) (quoting Holland on equitable tolling standard)