Case: 19-60017 Document: 00515538256 Page: 1 Date Filed: 08/24/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 24, 2020 No. 19-60017 Lyle W. Cayce Clerk Jorge Alfredo Flores-Moreno, Petitioner, versus William P. Barr, United States Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A077 241 507 Before Smith, Willett, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Jorge Alfredo Flores-Moreno, a native and citizen of Mexico, petitions for review of the denial of his motion to reopen removal proceedings by the Board of Immigration Appeals (BIA), which held that Flores-Moreno’s seven-years-late motion was untimely and not entitled to equitable tolling. Seeing no abuse of discretion, we deny the petition. I. Flores-Moreno entered the United States as a lawful permanent resident in 2001. In 2010, after he was convicted of possessing between 50 Case: 19-60017 Document: 00515538256 Page: 2 Date Filed: 08/24/2020 No. 19-60017 and 2,000 pounds of marijuana, the Department of Homeland Security (DHS) issued Flores-Moreno a Notice to Appear charging him as removable under 8 U.S.C. § 1227(a)(2)(B)(i) (authorizing removal of aliens convicted of controlled substance violations, including simple possession of more than 30 grams of marijuana). An immigration judge (IJ) subsequently found Flores-Moreno removable, but granted his application for cancellation of removal as a matter of discretion. DHS appealed the IJ’s order and the BIA reversed. Without disturbing the IJ’s factual findings, the BIA held that Flores-Moreno was not entitled to cancellation of removal because positive equities did not outweigh his “serious and recent criminal conviction.” The BIA’s removal order was entered on February 8, 2011, and Flores-Moreno was physically removed on February 11, 2011. More than seven years later, on May 1, 2018, Flores-Moreno filed a motion to reopen removal proceedings. While acknowledging his motion was untimely, Flores-Moreno argued that the 90-day deadline should be equitably tolled because he exercised due diligence in the face of extraordinary circumstances. In support of this argument, Flores-Moreno explained that he illegally reentered the United States on February 15, 2011, less than a week after his removal, and proceeded to his attorney’s office, where he spoke with a legal assistant. According to Flores-Moreno, the assistant informed him that his case could not be appealed because he had already been removed, and that all the firm could do was “file a recommendation” which would take three years. After waiting three years and realizing nothing was happening, Flores-Moreno spoke with a second attorney, who also told him nothing could be done. Several years after that, Flores-Moreno sought counsel from a third attorney who, on January 31, 2018, advised Flores-Moreno about the possibility of filing a motion to reopen premised on ineffective assistance of counsel rendered by his original attorney. After sending his original attorney an unanswered confrontation 2 Case: 19-60017 Document: 00515538256 Page: 3 Date Filed: 08/24/2020 No. 19-60017 letter and filing a grievance with the State Bar of Texas, Flores-Moreno filed his ...
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