NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-3294 _____________ DIEGO ALVAREZ-CASTRO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ________________ On Petition for Review from the Board of Immigration Appeals (Agency No. A200-295-619) Immigration Judge: Kuyomars Q. Golparvar ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 24, 2022 _____________ Before: CHAGARES, Chief Judge, McKEE and MATEY, Circuit Judges (Opinion filed: February 11, 2022) _____________ OPINION* _____________ * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge. Diego Alvarez-Castro petitions this Court to review the Board of Immigration Appeals’ (“BIA”) denial of his sua sponte motion to reopen. Because we conclude that we do not have jurisdiction to review this denial and because Alvarez-Castro did not exhaust his argument regarding equitable tolling, we must dismiss the petition. I. Alvarez-Castro is a native and citizen of Mexico. He came to the United States after facing threats from the Michoacan Family cartel due to his work as a chef at a hotel that housed agents from the Mexican federal police. After being placed in removal proceedings, Alvarez-Castro sought withholding of removal and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied withholding of removal, finding that the proffered particular social group (“PSG”) of “individuals who are perceived to have provided assistance to the Mexican Federal Police against narco-traffickers” was not cognizable. Administrative Record (“A.R.”) 118. The IJ also found that Alvarez-Castro had not shown that the Mexican Government was unable or unwilling to protect him. On appeal, the BIA agreed that the PSG was not cognizable. Because of this, the BIA held that it “need not reach the applicant’s other appellate arguments.” A.R. 75. When the BIA sent its notice of decision, on January 31, 2020, it was apparently delivered to the wrong office in petitioner’s counsel’s building — to a nonprofit on the first floor, with whom petitioner’s counsel does not share any files or information. 2 Alvarez-Castro had been released from detention, and only learned of the decision when he was instructed to present himself for deportation on July 3, 2020. Alvarez-Castro submitted a motion to reopen two weeks later, on July 17, 2020. The motion argued that the BIA should exercise its sua sponte reopening power due to an intervening change in law regarding particular social groups — Guzman Orellana v. Att’y Gen., 956 F.3d 171 (3d Cir. 2020). The BIA denied the motion. Petitioner filed this timely petition for review. II.1 Motions to reopen must normally be filed within ninety days of a final removal order, subject to limited exceptions not relevant here. See 8 C.F.R. § 1003.2(c)(2). However, the Board may, on its own authority, reopen a case at any time. See 8 C.F.R. § 1003.2(a). “The decision to grant or deny a motion to reopen . . . is within the discretion of the Board.” Id. We have held that because the BIA’s …
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