Case: 19-13273 Date Filed: 04/22/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13273 Non-Argument Calendar ________________________ Agency No. A020-630-106 ERNESTO GIL-ALMIROLA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (April 22, 2020) Before JORDAN, NEWSOM, and FAY, Circuit Judges. PER CURIAM: Case: 19-13273 Date Filed: 04/22/2020 Page: 2 of 10 Ernesto Gil-Almirola appeals the Board of Immigration Appeals’ (BIA) order denying on remand his second motion to reopen removal proceedings. He argues, in relevant part, (1) that the BIA failed to give reasoned consideration to his argument that he was not removable as an aggravated felon, as defined by the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(F), and (2) that the BIA was not permitted to deny his statutory motion to reopen based on the discretionary determination that, in light of his serious criminal history, he was not entitled to a waiver under 8 U.S.C. § 1182(h). We hold that the BIA did not err in not considering Gil-Almirola’s challenge to his removability, and further, that the BIA was permitted to deny his petition on discretionary grounds. We therefore deny Gil-Almirola’s petition. I We explained the factual and procedural history of this case in Gil-Almirola v. U.S. Attorney General, 750 F. App’x 859, 860–61 (11th Cir. 2018). In that opinion, we held that—in considering Gil-Almirola’s second motion to reopen— the BIA did not give “reasoned consideration” to Gil-Almirola’s equitable-tolling arguments and was “entirely silent on his ineffective-assistance-of-counsel contentions.” Id. at 862. We acknowledged that “it may well be, as the government contends, that Gil-Almirola’s diligence—or lack thereof—made equitable tolling inappropriate” in his case. Id. But because “the BIA did not rely 2 Case: 19-13273 Date Filed: 04/22/2020 Page: 3 of 10 on any supposed lack of diligence in denying Gil-Almirola’s second motion to reopen,” we remanded to the BIA. Id. On remand, the BIA decided that Gil-Almirola was not entitled to equitable tolling of the 90-day filing deadline applicable to motions to reopen because he “has not pursued his rights diligently,” citing the unexplained delay between the issuance of favorable caselaw and Gil-Almirola’s filing of his motion to reopen. The BIA also held, in the alternative, that “[e]ven assuming that [Gil-Almirola] established that equitable tolling of the filing deadline is warranted such that we would consider the merits of [his] motion, we conclude that [he] has not established that reopening these proceedings is merited because he has not shown that he is likely to be granted a[n] [8 U.S.C. § 1182(h)] waiver in the exercise of discretion.” After balancing Gil-Almirola’s “positive equities” and “significant adverse factors,” the BIA “conclude[d] that the adverse factors significantly outweigh the positive equities presented such that [Gil-Almirola] has not established that a discretionary grant of a [§ 1182(h)] waiver would be warranted.” The BIA also declined to exercise its sua sponte authority to reopen Gil-Almirola’s removal proceedings. Gil-Almirola ...
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