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Flores-Moreno v. Barr

Facts

Jorge Alfredo Flores-Moreno, a native and citizen of Mexico, entered the U.S. as a lawful permanent resident in 2001. After a conviction for marijuana possession, he was charged with removal in 2010. Although an immigration judge granted him cancellation of removal, the BIA reversed this decision in 2011, leading to his removal. More than seven years later, Flores-Moreno filed a motion to reopen, claiming he was entitled to equitable tolling due to extraordinary circumstances, but the BIA found his motion untimely.

Flores-Moreno entered the United States as a lawful permanent resident in 2001. In 2010, after he was convicted of possessing between 50 and 2,000 pounds of marijuana, the Department of Homeland Security (DHS) issued Flores-Moreno a Notice to Appear charging him as removable under 8 U.S.C. 1227(a)(2)(B)(i) (authorizing removal of aliens convicted of controlled substance violations, including simple possession of more than 30 grams of marijuana). An immigration judge (IJ) subsequently found Flores-Moreno removable, but granted his application for cancellation of removal as a matter of discretion. DHS appealed the IJ's order and the BIA reversed. Without disturbing the IJ's factual findings, the BIA held that Flores-Moreno was not entitled to cancellation of removal because positive equities did not outweigh his 'serious and recent criminal conviction.' The BIA's removal order was entered on February 8, 2011, and Flores-Moreno was physically removed on February 11, 2011.

Issue

Did the BIA abuse its discretion in denying Flores-Moreno's motion to reopen removal proceedings based on a lack of due diligence?

Rule

Equitable tolling of the 90-day deadline for filing a motion to reopen is warranted only if the petitioner establishes (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Equitable tolling is warranted only if petitioner establishes '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'

Analysis

The court determined that the BIA did not misapply the equitable tolling standard. It noted that Flores-Moreno failed to provide meaningful evidence of any efforts made to preserve his rights during the three years he waited to contact new counsel. The BIA's conclusion that Flores-Moreno did not demonstrate due diligence was supported by the lack of evidence regarding his actions during that period.

The BIA cited 'the lack of meaningful evidence regarding the steps [Flores-Moreno] took to preserve his rights from 2014 to 2017' to conclude that Flores-Moreno failed to demonstrate due diligence. Flores-Moreno offers no argument or authority supporting his contention that he pursued his rights with reasonable diligence by waiting three years to contact his current counsel after discovering his original counsel had done nothing with his case and then being told by a different attorney that nothing could be done.

Conclusion

The Fifth Circuit upheld the BIA's decision, denying Flores-Moreno's petition for review and concluding that the BIA did not abuse its discretion in finding that he failed to pursue his rights diligently.

Accordingly, the petition for review is DENIED.

Who won?

The Board of Immigration Appeals prevailed because Flores-Moreno did not demonstrate due diligence in pursuing his rights, which was necessary for equitable tolling.

The BIA did not abuse its discretion in holding that Flores-Moreno failed to pursue his rights diligently.

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