Case: 17-60580 Document: 00515326724 Page: 1 Date Filed: 02/28/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60580 FILED February 28, 2020 Lyle W. Cayce DENIS NOE MEJIA, Clerk Petitioner, v. WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent. Petitions for Review of the Order of the Board of Immigration Appeals Before HAYNES and OLDHAM, Circuit Judges, and HANEN,* District Judge. ANDREW S. OLDHAM, Circuit Judge: Petitioner Denis Noe Mejia, a Honduran citizen, entered the country unlawfully in February 2006. Also in 2006, the Government ordered him removed in absentia. There is no dispute Mejia received that removal order. But rather than challenge the order in 2006, Mejia waited ten years to file a motion to reopen. The Board of Immigration Appeals (“BIA”) denied relief, finding his delay inexcusable. We agree. * District Judge of the Southern District of Texas, sitting by designation. Case: 17-60580 Document: 00515326724 Page: 2 Date Filed: 02/28/2020 No. 17-60580 I. A. In June 2006, Mejia was personally served with a notice to appear (“NTA”). The NTA explained there would be a hearing to determine his removability, but it did not set a place or time for the hearing. That August, the Government mailed Mejia a notice of hearing (“NOH”). The NOH advised Mejia that the hearing would be held in November 2006 in New Orleans. Mejia says he did not receive the NOH. Mejia did not attend the November hearing, and the immigration judge ordered him removed in absentia. Sometime after the hearing—it’s unclear exactly when—Mejia received the removal order. 1 But, for the better part of a decade, Mejia made no attempt to challenge the order. Only in 2016—when he thought he’d be eligible for cancellation of removal because of his marriage to an American citizen—did he tell the Government that he’d never received the NOH. Mejia asked the immigration court to reopen and administratively close his removal proceedings, which would allow him to seek lawful permanent residence in this country. Here’s the catch: A motion to reopen ordinarily must be filed within 90 days of the removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). That deadline had passed years ago. So Mejia requested equitable tolling of the 90-day period. See Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016) (holding “that the deadline for filing a motion to reopen . . . is subject to equitable tolling”). Alternatively, he relied on 8 U.S.C. § 1229a(b)(5)(C)(ii), which permits “a motion to reopen [to be] filed at any time if the alien 1 Mejia changed his address in December 2006. Because the November 2006 deportation order would have been sent to his original address, we can surmise he learned of the order within a month after it was entered. 2 Case: 17-60580 Document: 00515326724 Page: 3 Date Filed: 02/28/2020 No. 17-60580 demonstrates that [he] did not receive [a] notice [to appear] in accordance with . . . section 1229(a) . . . ...
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