NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 21-1302 _______________ JOAQUIN TELLEZ-CRUZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. 078-494-569) _______________ Submitted Under Third Circuit L.A.R. 34.1(a): December 7, 2021 _______________ Before: SHWARTZ, PORTER, and FISHER, Circuit Judges. (Opinion Filed: December 22, 2021) ______________ OPINION ______________ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge. Joaquin Tellez-Cruz, a citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) order denying his motion to reopen his removal proceeding sua sponte. Tellez-Cruz argues that this Court’s opinion in Guadalupe v. Attorney General provides an extraordinary circumstance sufficient to justify equitable tolling of the 90-day deadline to move to reopen. 951 F.3d 161 (3d Cir. 2020); 8 U.S.C. § 1229a(c)(7)(C)(i). Because the BIA did not abuse its discretion when it declined to apply equitable tolling, we will deny the petition for review. I Tellez-Cruz entered the United States unlawfully. Two years later, the Immigration and Naturalization Service (whose functions are now under Department of Homeland Security) issued him a putative notice to appear in immigration court for removal proceedings, which ordered him to appear “on a date to be set at a time to be set.” A.R. 175–76. He later received a notice of hearing with a date and time to appear. Tellez-Cruz appeared for his hearing and was removed to Mexico in 2000 under a final removal order. Tellez-Cruz waived appeal. In 2003, Tellez-Cruz re-entered the United States without inspection. Immigration and Customs Enforcement (“ICE”) placed Tellez- Cruz under an order of supervision, requiring him to request annual or bi-annual stays of removal to avoid deportation. In 2018, ICE denied Tellez-Cruz’s application for a stay of removal and ordered him to appear at the ICE Philadelphia Field Office for physical removal. 2 Eighteen years after his removal, Tellez-Cruz filed his first motion to reopen, reconsider, and terminate removal proceedings. Tellez-Cruz argued that the Supreme Court’s decision in Pereira v. Sessions established that his 2000 notice to appear was defective and jurisdiction never vested with the Immigration Judge (“IJ”). 138 S. Ct. 2105 (2018). An IJ denied his motion, and the BIA affirmed. Tellez-Cruz then filed his second motion to reopen, reconsider, and terminate removal proceedings with the BIA. Tellez-Cruz argued that, under Guadalupe, jurisdiction never vested with the IJ or the BIA. Alternatively, Tellez-Cruz asked that the BIA remand his case so he could apply for cancellation of removal. The BIA declined to equitably toll the filing deadline, rejected his motion as untimely, and declined to exercise its sua sponte authority to reopen. This petition for review followed. Tellez-Cruz argues that the BIA abused its discretion in failing to equitably toll the 90-day statutory deadline to file his motion, filed two decades after the execution of his removal order. II The BIA’s jurisdiction arose …
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