Case: 19-13831 Date Filed: 06/11/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13831 Non-Argument Calendar ________________________ Agency No. A099-803-405 GUSTAVO ADOLFO AYALA AVALO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 11, 2020) Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and DUBINA, Circuit Judges. PER CURIAM: Case: 19-13831 Date Filed: 06/11/2020 Page: 2 of 10 Gustavo Adolfo Ayala Avalo (“Avalo”) petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to reopen his underlying removal proceedings. He first argues on appeal that the BIA did not reasonably consider his request for equitable tolling and that it erroneously considered his marriage fraud in its decision to deny his motion to reopen. Second, Avalo argues that the BIA’s statement that he did not support his motion to reopen with an application and supporting evidence was clearly erroneous and a misstatement of the record and that he met the statutory requirements for cancellation of removal. Lastly, Avalo argues that the BIA erroneously failed to address his motion to reopen based on its sua sponte authority. I. We review the BIA’s denial of a motion to reopen for abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). An alien may file a motion to reopen within 90 days of the date of the final order of removal. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). The BIA can toll this 90-day deadline when an alien establishes that: (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance stood in his way. Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). The alien must demonstrate both elements. See Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S. Ct. 1079, 1087 (2007) (habeas context). Tolling is an “extraordinary remedy” that should be used sparingly, but 2 Case: 19-13831 Date Filed: 06/11/2020 Page: 3 of 10 courts may toll time limitations when an inequitable event prevents a party’s timely action. Booth v. Carnival Corp., 522 F.3d 1148, 1150 (11th Cir. 2008). Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Attorney General of the United States has discretion to “cancel removal” and adjust the status of certain nonpermanent residents. 8 U.S.C. § 1229b(1). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, including that the noncitizen: (1) “has been physically present in the United States for a continuous period of not less than ten years” immediately preceding the date of an application for cancellation of removal; (2) “has been a person of good moral character during such period”; (3) “has not been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)”; and (4) “establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” ...
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