Case: 21-60479 Document: 00516507245 Page: 1 Date Filed: 10/13/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 13, 2022 No. 21-60479 Summary Calendar Lyle W. Cayce Clerk Everline Gesare Nyabwari, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097 683 208 Before Smith, Dennis, and Southwick, Circuit Judges. Per Curiam:* Everline Gesare Nyabwari, a native and citizen of Kenya, was ordered removed in September 2013 and has since filed multiple unsuccessful motions to reopen. She petitions for review of the denial by the Board of * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60479 Document: 00516507245 Page: 2 Date Filed: 10/13/2022 No. 21-60479 Immigration Appeals (BIA) of her April 2020 motion to reopen as untimely and supernumerary under 8 U.S.C. § 1229a(c)(7). The denial of a motion to reopen is reviewed under “a highly deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (quotation marks and citation omitted). The BIA abuses its discretion “when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” Id. Nyabwari argues that the statutory time and number limitations should have been equitably tolled with respect to her motion to reopen. According to Nyabwari, she has satisfied the requirements for equitable tolling because she pursued her rights with reasonable diligence. It was the extraordinary circumstance of ineffective assistance of counsel that prevented her seeking reopening on the basis of the BIA’s erroneous determination that she was ineligible for adjustment of status under 8 U.S.C. § 1255(a)(2). See Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016). “[T]he deadline for filing a motion to reopen under 8 U.S.C. § 1229a(c)(7) is subject to equitable tolling.” Id. Assuming without deciding that the statutory number bar may likewise be equitably tolled, Nyabwari has not shown entitlement to relief. Nyabwari asserts that she acted with due diligence because she first learned about the admissibility issue from her current counsel on March 1, 2020, and filed the instant motion to reopen on April 14, 2020, less than 90 days later. § 1229a(c)(7)(C)(i). Even assuming that Nyabwari acted diligently once she learned of the admissibility issue, she is required to make an additional showing that she acted with due diligence prior to discovering the issue. See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 305 & n.4 (5th Cir. 2017). 2 Case: 21-60479 Document: 00516507245 Page: 3 Date Filed: 10/13/2022 No. 21-60479 Significantly, Nyabwari has not offered information regarding her efforts to pursue her rights between the denial of her fourth motion to reopen on October 22, 2018, and her discovery through counsel of …
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