FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 28, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JESUS OLIVAS-MELENDEZ, Petitioner, v. No. 19-9601 (Petition for Review) ROBERT M. WILKINSON, * Acting United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT † _________________________________ Before McHUGH, BALDOCK, and EID, Circuit Judges. _________________________________ Twenty years after his removal proceedings became final and he was removed from the United States, Jesus Olivas-Melendez filed a motion to reopen. He relies on intervening caselaw to argue the criminal conviction for which he was removed is not a removable offense. Mr. Olivas-Melendez attempted to overcome the untimeliness of his motion in two ways: he argued the ninety-day time limit should be equitably tolled and that the agency should sua sponte reopen his removal proceedings in * Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson, Acting Attorney General, is substituted for William P. Barr as the respondent in this appeal. † This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. response to a fundamental change in the law. First the Immigration Judge (“IJ”) and then the Board of Immigration Appeals (“BIA”) rejected both arguments. Mr. Olivas- Melendez now asks for review from this court. We deny Mr. Olivas-Melendez’s petition for review on the equitable tolling argument, exercising jurisdiction under 8 U.S.C. § 1252, and we dismiss the petition for lack of jurisdiction on the challenge to the BIA’s failure to sua sponte reopen the removal proceedings. I. BACKGROUND Jesus Olivas-Melendez was lawfully admitted to the United States on February 5, 1991. He is a native and citizen of Mexico. On March 4, 1998, Mr. Olivas-Melendez was convicted of threatening with or using a dangerous weapon in a fight or quarrel in violation of Utah Code Ann. § 76-10-506. See Administrative Record (“AR”) at 95. The government initiated removal proceedings against Mr. Olivas-Melendez shortly after he was convicted, claiming he was removable because he was convicted under a statute involving “a firearm or destructive device (as defined in Section 921(a) of Title 18, United States Code).” Id. The removal proceedings were thus premised on Mr. Olivas-Melendez having a conviction for “threatening with or using a dangerous weapon, to-wit: a firearm, in a fight or quarrel, in violation of Title 76, Chapter 10, Section 506 of the Utah Code Annotated 1953, as amended.” Id. The government served Mr. Olivas-Melendez with a Notice to Appear on March 19, 1998, which was filed on March 24, 1998. Id. at 95–96. The Notice did not 2 list the date or time of the removal hearing. 1 However, also on March 24, 1998, the government issued a Notice of Hearing in Removal proceedings, which listed the date and time of the hearing. At a March 26, 1998, hearing ...
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