United States Court of Appeals For the First Circuit No. 18-1138 JOSE ALBERTO MEDINA, Petitioner, v. MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL,* Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Lynch, Stahl, and Kayatta, Circuit Judges. Randy Olen on brief for petitioner. Virginia L. Gordon, Trial Attorney, Civil Division, U.S. Department of Justice, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent. January 22, 2019 * Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Matthew G. Whitaker has been substituted for former Attorney General Jefferson B. Sessions, III as the respondent. STAHL, Circuit Judge. Petitioner Jose Alberto Medina ("Medina"), a native and citizen of Guatemala, appeals an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen his immigration proceedings as untimely. Medina concedes that the motion, which was filed nearly five years after the BIA ordered his removal, fell outside the 90-day limitations period set forth by statute and regulation. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, he asks this court to find that the BIA abused its discretion in rejecting his equitable tolling argument which was meant to render his motion timely. For the following reasons, we deny the petition. I. Factual and Procedural Background Medina entered the United States near San Ysidro, California, on February 5, 1993. In the summer of 1993, he filed an application for asylum with the Immigration and Naturalization Service ("INS").1 On May 23, 2007,2 INS began removal proceedings against Medina. In his written pleadings, Medina stated that he was seeking asylum, withholding of removal, and relief under the 1 "The INS's enforcement functions have since been transferred to the Department of Homeland Security (DHS) . . . ." Chedid v. Holder, 573 F.3d 33, 34 n.1 (1st Cir. 2009). 2The record does not explain why no action was taken for fourteen years until April 10, 2007, when Medina was interviewed by an INS agent. - 2 - Convention Against Torture ("CAT"). In the alternative, he sought voluntary departure. He appeared with his first counsel, Lidia Sanchez ("Sanchez"), before an Immigration Judge ("IJ") at a hearing on October 10, 2007.3 At the hearing, counsel stated that Medina sought asylum and withholding of removal, and in the alternative, cancellation of removal, but expressly disavowed any claim for relief under the CAT. The IJ then continued the hearing to July 7, 2008. Because of multiple continuances, the hearing did not resume until June 16, 2011. On that date, Sanchez represented that Medina conceded removability but still sought cancellation of removal or, in the alternative, voluntary departure. Counsel further stated that Medina wished to withdraw his applications for asylum and withholding of removal. The IJ asked counsel to affirm that Medina understood that his withdrawal of those applications would be with prejudice, and she affirmed that he did so understand. Thereafter, Medina provided oral testimony, the content of which ...
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