Case: 19-60170 Document: 00515627701 Page: 1 Date Filed: 11/05/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals No. 19-60170 Fifth Circuit Summary Calendar FILED November 5, 2020 Lyle W. Cayce Jose Ignacio Almaguer, Clerk Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A034 334 373 Before Jolly, Elrod, and Graves, Circuit Judges. Per Curiam:* Jose Ignacio Almaguer, a native and citizen of Mexico, seeks review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) order denying his motion to reopen removal proceedings. The BIA concluded that Almaguer’s motion, which was filed * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60170 Document: 00515627701 Page: 2 Date Filed: 11/05/2020 No. 19-60170 more than 17 years after the entry of the final order of removal, was untimely on its face and that equitable tolling was not warranted because Almaguer failed to show that he pursued his rights diligently. The BIA found, in the alternative, that Almaguer failed to establish his prima facie eligibility for relief. The BIA also rejected Almaguer’s argument that reopening was warranted in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). To the extent that Almaguer’s arguments implicate the validity of his removal order, we lack jurisdiction to consider the issue as Almaguer did not appeal the removal order to the BIA and therefore failed to exhaust his administrative remedies. See Mendias-Mendoza v. Sessions, 877 F.3d 223, 227- 28 (5th Cir. 2017); Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). Insofar as Almaguer argues that the BIA ignored his arguments on this issue, we lack jurisdiction to consider his unexhausted challenge to the BIA’s “act of decisionmaking.” Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009); see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). We have jurisdiction to review the denial of a statutory motion to reopen based on untimeliness, Mata v. Lynch, 576 U.S. 143, 147 (2015), including the question presented here, which is, whether a given set of facts gives rise to equitable tolling, see Flores-Moreno v. Barr, 971 F.3d 541, 544 (5th Cir. 2020). The BIA’s determination that Almaguer provided only vague statements supporting his assertion that he acted diligently in discovering the possibility of relief was not erroneous or inconsistent with our reasoning in Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017), or Mejia v. Barr, 952 F.3d 255 (5th Cir. 2020), in which we explained that “reasonable diligence” means “within a reasonable time,” rather than “within a reasonable time but only when you think you can win.” Mejia, 952 F.3d at 259 (internal quotation marks omitted). Nor do we find that the BIA’s decision represented an unacceptably harsh ...
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