Jose Guerrero-Soto v. Jefferson Sessions, III

Case: 16-60693 Document: 00514341536 Page: 1 Date Filed: 02/08/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-60693 Fifth Circuit FILED Summary Calendar February 8, 2018 Lyle W. Cayce JOSE GUERRERO-SOTO, Clerk Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A091 225 150 Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM: * Jose Guerrero-Soto, a native and citizen of Mexico, has filed a petition for review from the decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) decision denying his motion to reopen. Guerrero-Soto argues that the BIA erred in determining that the IJ correctly found that he was not entitled to equitable tolling of the 90-day limitations period applicable to statutory motions to reopen under 8 U.S.C * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-60693 Document: 00514341536 Page: 2 Date Filed: 02/08/2018 No. 16-60693 § 1229a(c)(7)(A), (c)(7)(C)(i). See Lugo-Resendez v. Lynch, 831 F.3d 337, 340- 44 (5th Cir. 2016). Guerrero-Soto also contends that the BIA erred in finding that the IJ did not exhibit impermissible bias and that the BIA erred in declining to sua sponte reopen his case. We review the denial of a motion to reopen under a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The ruling will stand even if we conclude that it is erroneous, “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (internal quotation marks and citation omitted). In the instant case, Guerrero-Soto filed his motion to reopen before the IJ more than nine years after the date of the order of removal. Equitable tolling is warranted if the litigant established “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lugo-Resendez, 831 F.3d at 344 (internal quotation marks and citation omitted). The argument that the BIA relied on his failure to appeal the removal order in determining that he did not show diligence is not supported by the record. Aside from his decision to waive his appeal, Guerrero-Soto has not shown that he diligently pursued his rights in light of the fact that counsel entered an appearance in October 2012 and requested copies of the record in his removal proceedings at that time but did not file the instant motion to reopen proceedings until December 2014. See Lugo-Resendez, 831 F.3d at 344. Guerrero-Soto’s assertions do not show a personal bias or pervasive prejudice on the part of the IJ. See Matter of Exame, 18 I & N ...

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