NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-2476 ____________ EDWIN DEJESUS MEJIA-MORALES, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1: A078-282-289) Immigration Judge: David Cheng ____________ Submitted under Third Circuit LAR 34.1(a) March 3, 2020 Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges. (Filed: March 6, 2020) ____________ OPINION * ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge. Edwin De Jesus Mejia-Morales petitions for review of an order of the Board of Immigration Appeals affirming an Immigration Judge’s order denying his motion to reopen his removal proceedings. We will deny the petition for review. I A native of Guatemala, Mejia-Morales entered the United States without admission or parole on August 31, 2005. The next day, the Department of Homeland Security served him with a Notice to Appear, charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i). The Notice indicated that the initial hearing would be “on a date to be set at a time to be set.” AR 487. Meija-Morales received notice of the date and time of his hearing, and later applied for asylum, withholding of removal, and protection under the Convention Against Torture. When Mejia-Morales did not appear at a merits hearing scheduled for February 4, 2015, the IJ ordered him removed in absentia. Mejia-Morales later averred that he arrived at court just after the IJ ordered him removed. On November 2, 2018—1,368 days after the IJ ordered removal—Mejia-Morales filed a motion to reopen under 8 C.F.R. § 1003.23(b)(1). The IJ denied that motion as untimely, so Mejia-Morales appealed. After the BIA dismissed the appeal, Mejia-Morales filed a timely petition for review in this Court. 2 II 1 Mejia-Morales raises two arguments in this appeal, one jurisdictional and one on the merits. His jurisdictional challenge—that his Notice to Appear was defective—is foreclosed by our opinion in Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019). His merits challenge—that the agency should have heard his untimely motion to reopen—is unpersuasive for the reasons that follow. A motion to reopen under 8 C.F.R. § 1003.23 typically must be filed within 90 days of the final order of removal. 8 C.F.R. § 1003.23(b)(1). But in this case, Mejia- Morales’s challenge to the order of removal entered in absentia is governed by 8 U.S.C. § 1229a(b)(5)(C)(i), which provides that the order may be rescinded only on “a motion to reopen filed within 180 days after the date of the order [] if [he] demonstrates that the failure to appear was because of exceptional circumstances.” Id. That 180-day period is subject to equitable tolling, however. Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005). Mejia-Morales claims equitable tolling saves his untimely motion because his prior counsel was ineffective. See Mahmood v. Gonzales, 427 F.3d 248, 258 (3d Cir. 2005). ...
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