Case: 18-60504 Document: 00514968960 Page: 1 Date Filed: 05/23/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-60504 May 23, 2019 Summary Calendar Lyle W. Cayce Clerk EMILIO TREVINO, Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A013 536 911 Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. PER CURIAM: * Emilio Trevino was removed from the United States in 2004, based on his conviction of an aggravated felony in 1991. He filed a motion to reopen his removal proceedings in 2017. He petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming the order of the Immigration Judge (IJ) denying his motion to reopen removal proceedings. The BIA found * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-60504 Document: 00514968960 Page: 2 Date Filed: 05/23/2019 No. 18-60504 that Trevino’s motion was untimely and declined to exercise its sua sponte discretion to reopen the removal proceedings. Trevino argues that the IJ and BIA erred in denying his motion to reopen as untimely. He contends that he invoked equitable tolling by arguing for estoppel by laches, misrepresentation, and negligence, arguing that the Government is estopped from invoking the statute of limitations where its own fraudulent conduct in his criminal proceedings has prevented him from filing his motion to reopen within the applicable period. We have jurisdiction to review a request for equitable tolling of a motion to reopen. Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). However, we lack jurisdiction to review a removal order against an alien who is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) due to the commission of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C); see Arce-Vences v. Mukasey, 512 F.3d 167, 170 (5th Cir. 2007). Section 1252(a)(2)(C) also bars review of the denial of a motion to reopen any such removal order. See Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018); Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004). We retain jurisdiction to review constitutional claims or questions of law. § 1252(a)(2)(D); Diaz, 894 F.3d at 226. In determining whether equitable tolling is appropriate, “[c]ourts must consider the individual facts and circumstances of each case.” Lugo-Resendez v. Lynch, 831 F.3d 337, 344-45 (5th Cir. 2016). We have held that whether an alien acted diligently in attempting to reopen removal proceedings for purposes of equitable tolling is a factual question. Penalva v. Sessions, 884 F.3d 521, 525 (5th Cir. 2018). When the application of the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) turns on questions of fact, we do not have jurisdiction to consider petition for review. Penalva, 884 F.3d at 526. 2 Case: 18-60504 Document: 00514968960 Page: 3 Date Filed: 05/23/2019 No. 18-60504 The ...
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