Jill D. Olsen v. Lee Kraus

United States Court of Appeals
For the Eighth Circuit
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No. 20-1504
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Carlos Enrique Urrutia Robles
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 21, 2021
Filed: January 26, 2022
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
The Department of Homeland Security (DHS) placed Carlos Enrique Urrutia
Robles in removal proceedings following his arrest for injuring a pedestrian while
driving under the influence. Urrutia conceded removability and applied for exercise
of the Attorney General’s discretion to grant cancellation of removal. See 8 U.S.C.
§ 1229b. After a hearing, the Immigration Judge (IJ) found that Urrutia satisfied the
four eligibility requirements of § 1229b(b)(1). Turning to exercise of the Attorney

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General’s discretion, the IJ concluded that Urrutia’s “significant negative factors”
were outweighed by positive factors and granted relief. DHS filed an administrative
appeal. Reviewing the IJ’s discretionary determination de novo, the Board of
Immigration Appeals (BIA) denied cancellation of removal, ordered Urrutia removed
to Mexico, and subsequently denied his timely motion to reopen proceedings.
Urrutia petitioned for review of both BIA orders. We denied the petition,
concluding that we lacked jurisdiction to overturn the BIA’s initial discretionary
decision, and that the BIA did not abuse its discretion in denying Urrutia’s motion to
reopen. Urrutia Robles v. Barr, 940 F.3d 420, 424 (8th Cir. 2019) (Urrutia I), cert.
denied, 141 S. Ct. 1047 (2021). Nearly three months after we decided Urrutia I,
Urrutia filed a second motion with the BIA to reopen the proceedings, arguing that
newly discovered evidence warranted reopening and that his due diligence and
extraordinary circumstances “should compel statutory tolling of the time and number
limits” on motions to reopen. See 8 C.F.R. § 1003.2(c)(2) and (3). On March 6,
2020, the BIA denied Urrutia’s second motion to reopen his cancellation of removal
application. The Decision explained that, in its prior final administrative decision:
[w]e balanced the respondent’s equities and negative factors before
concluding that he did not warrant discretionary relief, given his
repeated driving under the influence (“DUI”) offenses, including a 2017
accident resulting in a pedestrian suffering a traumatic brain injury and
fractured leg.
Stating that it “considered both of [Urrutia’s] filings in our decision,” the BIA
concluded (i) Urrutia “has not demonstrated that an exception to the time and number
limits applies”; (ii) because “the supplemental evidence is not likely to change the
outcome of the proceedings, it does not warrant a new hearing”; and (iii) Urrutia “has
not established an exceptional situation warranting sua sponte reopening” under 8
C.F.R. § 1003.2(a) (2020). Urrutia petitions for review of the denial of his second
motion to reopen. We deny the petition for review.
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Motions to reopen removal proceedings are disfavored because there is a
“strong public interest” in litigation finality. Urrutia I, 940 F.3d at 423, quoting
Gebremaria v. Ashcroft, 378 F.3d 734, 737 (8th Cir. 2004). Reflecting that disfavor,
Congress in the Immigration and Nationality Act has imposed both number and time
limitations on motions to reopen: in a removal proceeding, a petitioner may file one
motion to reopen proceedings which generally must be filed within 90 days of the
final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(A) and (C)(i); 8
C.F.R. § 1003.2(c)(2) (2020). We review the BIA’s denial of a motion to reopen for
abuse of discretion. Kucana v. Holder, 558 U.S. 233, 242, 253 (2010).
Equitable tolling extends many deadlines for parties who were prevented from
complying with the deadline for reasons beyond their control. Capiz-Fabian v. Barr,
933 F.3d 1015, 1018 (8th Cir. 2019). “To qualify for the remedy of equitable tolling,
[Urrutia] bears the burden of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Id. (cleaned up), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Urrutia
argues the BIA abused its discretion in denying his second, untimely motion to
reopen by failing to address his equitable-tolling argument. Decisions in other
circuits are inconsistent as to whether equitable tolling applies to numerical
limitations on motions to reopen. See Tapia-Martinez v. Gonzales, 482 F.3d 417,
422–23 (6th Cir. 2007). In Habchy v. Gonzales, 471 F.3d 858, 864 (8th Cir. 2006),
we declined to reach this issue, denying the petition for review on other grounds.
Likewise, we need not address this issue in this case. The BIA denied the second
motion to reopen on a proper ground -- because Urrutia “again has not shown that he
merits discretionary relief.”
Urrutia’s primary argument to this court is that, because the BIA’s three-
paragraph decision failed to assess or even acknowledge his core claim that the time
and number limitations should be equitably tolled, “Eighth Circuit precedent requires
remand,” citing Ortega-Marroquin v. Holder, 640 F.3d 814, 820 (8th Cir. 2011). But
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Urrutia misreads this decision. Ortega petitioned for review of a BIA decision
vacating its prior sua sponte order granting Ortega’s untimely motion to reopen as
contrary to the “departure bar” regulation found in 8 C.F.R. § 1003.2(d). Ortega’s
petition for review argued the departure bar regulation is unconstitutional. The
government argued Ortega’s original motion was untimely. Ortega responded the 90-
day filing deadline was subject to equitable tolling because he received ineffective
assistance of counsel, an issue the BIA had not addressed. Concluding that validity
of the departure bar “would be before this court” only if the 90-day deadline was
equitably tolled, we remanded to the BIA to address that issue. Far from being a
decision that we must remand whenever the BIA fails to address an equitable tolling
issue that was properly raised, Ortega-Marroquin simply applied the time-honored
rule that a reviewing court “must judge the propriety of [an agency] action solely by
the grounds invoked by the agency.” 640 F.3d at 820, quoting SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947).
Here, other than correctly noting that Urrutia “has not demonstrated that an
exception to the time and number limits applies,” the BIA did not address his claim
that equitable tolling excuses his failure to comply with those limits. But the BIA did
not need to address the issue. There are at least three independent grounds on which
the BIA may deny a motion to reopen -- failure to establish a prima facie case for the
relief sought; failure to introduce previously unavailable, material evidence; or, “in
cases in which the ultimate grant of relief is discretionary . . . the BIA may leap
ahead, as it were . . . and simply determine that even if [the first two concerns were
met], the movant would not be entitled to the discretionary grant of relief.” INS v.
Abudu, 485 U.S. 94, 104-05 (1988); see generally Matter of Coelho, 20 I. & N. Dec.
464, 473 (BIA 1992).
Here, the BIA concluded that the supplemental evidence Urrutia offered in
support of his second motion to reopen “is not likely to change the outcome of the
proceedings,” that is, the denial of a discretionary grant of cancellation of removal.
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In Robles I, we noted that we lacked jurisdiction to review the initial discretionary
decision; we assumed without deciding we had jurisdiction to review the denial of
Urrutia’s first motion to reopen for abuse of discretion; and we denied the petition for
review of that decision. We explained that Urrutia had urged the BIA to remand for
consideration of “stronger evidence of rehabilitation to support his initial claim for
discretionary relief,” and the BIA denied the motion because he “failed to satisfy his
burden to show that this new evidence ‘would likely change the result in the case.’”
940 F.3d at 423.
As the BIA concluded, the same analysis applies to Urrutia’s second motion
to reopen. In support of this motion, Urrutia offered further evidence he has been
“rehabilitated” from his alcohol problems, including a state court order discharging
him from probation and criminal supervision, and expert medical opinion that
subjecting Urrutia’s daughter to a third separation from her father “should be
expected to result in dangerous levels of toxic stress.” This was cumulative evidence,
not a completely new basis for seeking cancellation of removal, as Urrutia had argued
rehabilitation and harm-to-his-children from the outset of the proceedings. See
Urrutia I, 940 F.3d at 422. In denying the motion on this ground, the BIA followed
its established policy by considering additional evidence and concluding it would not
likely change the result in this case -- denial of discretionary cancellation-of-removal
relief. See Vargas v. Holder, 567 F.3d 387, 390-91 (8th Cir. 2009). Urrutia argues
the BIA failed to consider his statutory eligibility for relief, in other words, that he
made a prima facie case for relief. But here, the BIA leaped ahead of the eligibility
issue, consistent with Abudu, and determined that the evidence Urrutia presented did
not entitle him to a discretionary grant of relief. The BIA “has discretion to deny a
motion to reopen even if the party moving has made out a prima facie case for relief.”
8 C.F.R. § 1003.2(a) (2020). The BIA did not abuse its discretion in denying
Urrutia’s successive motion to reopen.
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Urrutia further argues the BIA abused its discretion in declining to reopen
proceedings sua sponte based on his showing of exceptional circumstances. We
cannot consider this issue absent a “colorable constitutional claim.” Vue v. Barr, 953
F.3d 1054, 1057 (8th Cir. 2020); see Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th
Cir. 2008) (en banc). Urrutia argues the BIA decision deprived him of a
constitutionally protected liberty interest. This contention is without merit. See
Baker White v. Wilkinson, 990 F.3d 600, 605 (8th Cir. 2021); Sanchez-Velasco v.
Holder, 593 F.3d 733, 737 (8th Cir. 2010) (“aliens have no right to due process in the
purely discretionary remedy of cancellation of removal”).
For the foregoing reasons, we deny the petition for review.
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