In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1459 ISMAEL HERNANDEZ-ALVAREZ, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A043-789-540. ____________________ ARGUED NOVEMBER 6, 2020 — DECIDED DECEMBER 16, 2020 ____________________ Before ROVNER, BRENNAN and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Mexican citizen Ismael Hernandez- Alvarez was a permanent resident of the United States when, in 2002, he was convicted in Illinois of indecent solicitation of a child. The Department of Homeland Security (“DHS”) initi- ated removal proceedings on the grounds that his conviction constituted an aggravated felony. Though Hernandez-Alva- rez argued that his solicitation conviction did not qualify as 2 No. 20-1459 an aggravated felony, an Immigration Judge (“IJ”) and the Board of Immigration Appeals (the “Board”) disagreed and ordered his removal. He then moved for the Board to recon- sider but was removed to Mexico before the Board decided his motion. The Board then determined that his removal con- stituted a withdrawal of his motion to reconsider. Fifteen years later, Hernandez-Alvarez moved for the Board to reconsider its decision and reopen his removal pro- ceedings in light of two recent Supreme Court decisions: Es- quivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), and Pereira v. Sessions, 138 S. Ct. 2105 (2018). He argued that his motion was timely because it merited equitable tolling; alternatively, he requested that the Board invoke its authority to reopen his proceedings sua sponte. 1 The Board denied his statutory mo- tion to reconsider and reopen, concluding that equitable toll- ing was not warranted because Hernandez-Alvarez failed to show due diligence. It also rejected his argument based on Pe- reira that the IJ did not have jurisdiction over his removal pro- ceedings and declined to exercise its power to reopen the pro- ceedings sua sponte. Because the Board did not abuse its dis- cretion in denying Hernandez-Alvarez’s statutory motion to 1 We recognize that “[d]escribing the motion as seeking a ‘sua sponte’ reopening is a common but unfortunate misnomer and even an oxymo- ron.” Salazar-Marroquin v. Barr, 969 F.3d 814, 816 n.1 (7th Cir. 2020); see also Fuller v. Whitaker, 914 F.3d 514, 515 n.1 (7th Cir. 2019) (“[W]hen the Board acts in response to a litigant’s request, it is not acting sua sponte.”). None- theless, we use the phrase here because it “distinguishes the Board’s in- herent power to reopen removal proceedings at any time from a party’s right to file one motion to reopen within 90 days of a final agency deter- mination” or a party’s right to file one motion to reconsider within 30 days of a final agency determination. Salazar-Marroquin, 969 F.3d at 816 n.1. No. 20-1459 3 reconsider and reopen, his petition for review is denied. And because the Board did not commit legal error in declining to reopen his proceedings sua sponte, we dismiss that aspect of the petition for want of jurisdiction. ...
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