USCA11 Case: 19-14572 Date Filed: 05/27/2021 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14572 Non-Argument Calendar ________________________ Agency No. A205-653-890 HERNAN MARTIN GUERRA-MAYORCA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (May 27, 2021) Before MARTIN, LAGOA, and BLACK, Circuit Judges. PER CURIAM: USCA11 Case: 19-14572 Date Filed: 05/27/2021 Page: 2 of 13 Hernan Guerra-Mayorca (Guerra) seeks review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen his removal proceedings. The BIA denied the motion as untimely and alternatively found Garcia was ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) because he had not accrued ten years of continuous physical presence in the United States before the stop-time rule was triggered. Guerra argues his motion to reopen raised an equitable tolling argument to which the BIA failed to give reasoned consideration. He also argues the BIA abused its discretion in finding his deficient Notice to Appear (NTA), which omitted the date and time of his initial hearing, was cured by a subsequent notice of hearing, thereby triggering the stop-time rule. After review,1 we dismiss the petition for review in part and deny it part. An alien must file a motion to reopen his removal proceedings within 90 days of the date of the final administrative order of removal, subject to several statutory exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Guerra’s April 29, 2019, motion to reopen was untimely on its face, as it was filed three years after the BIA dismissed his appeal of the IJ’s decision on April 29, 2016. 1 We generally review for abuse of discretion the BIA’s denial of a motion to reopen. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). However, claims that the agency failed to give reasoned consideration to an issue or applied the wrong legal standard are questions of law reviewed de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). We review our subject matter jurisdiction de novo. Id. 2 USCA11 Case: 19-14572 Date Filed: 05/27/2021 Page: 3 of 13 However, the statutory 90-day deadline is subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1364 (11th Cir. 2013) (en banc). To show he is eligible for equitable tolling, an alien must demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013) (quotation marks omitted). Guerra argues that his motion to reopen adequately raised an equitable tolling argument to which the BIA failed to give reasoned consideration. He contends he raised equitable tolling before the BIA because his arguments concerning his eligibility for cancellation of removal were based on new law— specifically, the Supreme Court’s 2018 decision in Pereira v. Sessions, …
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