Case: 22-60617 Document: 00516836944 Page: 1 Date Filed: 07/27/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-60617 Summary Calendar FILED ____________ July 27, 2023 Lyle W. Cayce David Reynosa-Romero, Clerk Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A090 385 097 ______________________________ Before Wiener, Elrod, and Engelhardt, Circuit Judges. Per Curiam: * Petitioner David Reynosa-Romero, a native and citizen of Mexico, seeks review the Board of Immigration Appeals’s (“BIA”) decision denying his 2021 motion to reopen his removal proceedings. Reynosa-Romero contends that the BIA abused its discretion by failing to adequately articulate the reasons for its denial of his motion or to cite the relevant grounds for _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60617 Document: 00516836944 Page: 2 Date Filed: 07/27/2023 No. 22-60617 denial under precedent. Reynosa-Romero further contends that he is entitled to equitable tolling. For the following reasons, Reynosa-Romero’s petition is DISMISSED IN PART AND DENIED IN PART. We review the BIA’s factual findings for substantial evidence and its legal conclusions de novo. Ovalles v. Rosen, 984 F.3d 1120, 1123 (5th Cir. 2021), cert. denied sub nom. Ovalles v. Garland, 142 S. Ct. 107 (2021). Motions to reopen or reconsider 1 are “particularly disfavored,” Nguhlefeh Njilefac v. Garland, 992 F.3d 362, 365 n.3 (5th Cir. 2021). We review the denial of such motions by BIA “under a highly deferential abuse-of-discretion standard.” Ovalles, 984 F.3d at 1123 (internal quotation marks and citation omitted); Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017). A motion to reopen must be filed within 90 days of the order of removal. A motion to reconsider must be filed within 30 days of such an order. 8 U.S.C. § 1229a(c)(6)(B), (c)(7)(C)(i). Both time limitations are subject to equitable tolling. See Gonzalez Hernandez v. Garland, 9 F.4th 278, 284–87 (5th Cir. 2021), cert. denied, 143 S. Ct. 86 (2022); Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016). An alien is entitled to equitable tolling if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Mejia v. Barr, 952 F.3d 255, 259 (5th Cir. 2020) (internal quotation marks and citation omitted). Whether a petitioner has exercised due diligence for purposes of equitable tolling is a mixed question of fact and law _____________________ 1 In light of this court’s decision in Gonzalez Hernandez v. Garland, 9 F.4th 278, 286 (5th Cir. 2021), cert. denied, 143 S. Ct. 86 (2022), Reynosa-Romero’s motion is more properly considered as a motion to reconsider because he contends that a change in law, specifically, INS v. St. Cyr, 533 U.S. 289 (2001), invalidated the immigration court’s 1996 order. See Gonzalez Hernandez, 9 F.4th at 286. The treatment of the motion as such, however, does not affect our analysis …
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