Carlos Londono-Gonzalez v. William Barr, U.S. Atty

United States Court of Appeals
for the Fifth Circuit

No. 16-60766

Carlos Alberto Londono-Gonzalez,

Petitioner,

versus

William P. Barr, United States Attorney General,
*

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A037 584 356

ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Higginbotham, Elrod, and Duncan, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
In Londono-Gonzalez v. Whitaker, this court held that it lacked
jurisdiction to review the denial of Carlos Alberto Londono-Gonzalez’s
motion to reopen because Londono-Gonzalez had “committed an offense

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
William P. Barr is automatically substituted for former Acting Attorney General Matthew
G. Whitaker as Respondent.
United States Court of Appeals
Fifth Circuit
FILED
October 26, 2020

Lyle W. Cayce
Clerk
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covered in 8 U.S.C. §§ 1227(a)(2)(A)(iii).” 744 F. App’x 898, 899 (5th Cir.
2018). Two years later, the Supreme Court held that even in cases involving
aliens who are “removable for having committed certain crimes,” courts of
appeals have jurisdiction to consider “constitutional claims or questions of
law.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020) (quoting 8
U.S.C. § 1252(a)(2)(D)). Accordingly, the Supreme Court concluded,
courts of appeals have jurisdiction to determine whether an undisputed set
of facts demonstrates diligence on the part of an alien requesting equitable
tolling. See id. In line with that holding, that court granted certiorari in
Londono-Gonzalez, vacated the judgment, and remanded “for further
consideration in light of Guerrero-Lasprilla.” See Londono-Gonzalez v. Barr,
140 S. Ct. 2561 (2020).
After remand, we requested and received supplemental briefing. We
now address the diligence issue.
Carlos Alberto Londono-Gonzalez, a native and citizen of Colombia
who was removed from the United States as a criminal alien more than
twenty years ago, seeks review of the decision of the Board of Immigration
Appeals denying his motion to reopen his removal proceedings based on its
finding that he failed to establish the due diligence necessary to warrant
equitable tolling of the 90-day deadline for such motions established by 8
U.S.C. § 1229a(c)(7)(C). Londono-Gonzalez was ordered removed from the
United States in 2000 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) based on his
federal drug trafficking convictions, which were aggravated felonies.
In 2016, more than four months prior to the issuance of our decision
in Lugo-Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016), Londono-
Gonzalez moved to reopen his removal proceedings based on the BIA’s
decision in Matter of Abdelghany, 26 I. & N. Dec. 254 (2014). In Abdelghany,
the BIA addressed the impact of the Supreme Court’s decision in INS v. St.
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Cyr, 533 U.S. 289, 326 (2001), and its progeny, including Vartelas v. Holder,
566 U.S. 257, 273–75 (2012), and Carranza-De Salinas v. Holder, 700 F.3d
768, 773–75 (5th Cir. 2012), “upon individuals convicted after trial in order
to provide a uniform nationwide rule” regarding the availability of relief
under former § 212(c) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1182(c) (1994). 26 I. & N. Dec. at 266–69 & n.13 (quotation). The
BIA dismissed Londono-Gonzalez’s appeal from the immigration judge’s
denial of his motion, concluding under Lugo-Resendez, which was decided
while his BIA appeal was pending, that Londono-Gonzalez had not shown
the requisite due diligence to warrant equitable tolling given that he waited
more than three years after Carranza-De Salinas was decided to file his
motion to reopen. 744 F. App’x 899.
As Londono-Gonzalez frames the question, “all parties agree on the
facts, but only differ on the following legal question—when to measure
diligence.” We agree with that framing. This court reviews factual findings
for substantial evidence, and legal conclusions de novo. Morales v. Sessions,
860 F.3d 812, 816–17 (5th Cir. 2017).
Petitioner contends that diligence should be measured from this
court’s decision in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016),
where we held that the deadline to file a motion to reopen is subject to
equitable tolling. See 831 F.3d at 344. The government contends that we
should measure diligence from Carranza-De Salinas, in which this court held
that the repeal of former § 212(c) of the Immigration and Nationality Act
could not be retroactively applied to aliens in Londono-Gonzalez’s position.
See Carranza-De Salinas, 700 F.3d at 774–75.
An alien may equitably toll the time period to file a motion to reopen
if he demonstrates that (1) he “has been pursuing his rights diligently” and
(2) an extraordinary circumstance prevented him from timely filing. Lugo-
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Resendez, 831 F.3d at 344. Londono-Gonzalez contends that the
extraordinary circumstance that stood in his way was the fact that he “was
prohibited from filing a motion to reopen” prior to this court’s decision in
Lugo-Resendez. We disagree.
In the first place, this argument is contradicted by the facts of this case.
Londono-Gonzalez actually filed his motion to reopen more than four
months before Lugo-Resendez was decided, and he was not prohibited from
making that filing.
Moreover, uncertain legal terrain does not create an obstacle that
stands in the way of an individual meeting the motion to reopen deadline.
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 757 (2016).
Londono-Gonzales is correct that, prior to Lugo-Resendez, this court
construed equitable tolling requests as unreviewable invitations for the BIA
to sua sponte reopen a petitioner’s removal proceeding. See Lugo-Resendez,
831 F.3d at 343. But regardless of how this court characterized such requests
on judicial review, there was no case law saying that the BIA could not
equitably toll the motion to reopen time limitation.
Londono-Gonzalez also assumes that he could not have been expected
to file a motion to reopen prior to Mata v. Lynch, 576 U.S. 143, 150–51 (2015),
in which the Supreme Court reversed this circuit’s characterization of
equitable tolling requests. But prior to Mata and Lugo-Resendez, petitioners
in this circuit were regularly asking the BIA to equitably toll the motion to
reopen limitations period. See, e.g., Villatoro-Avila v. Holder, 622 F. App’x
451, 452 (5th Cir. 2015) (per curiam); Singh v. Holder, 584 F. App’x 184, 184
(5th Cir. 2014) (per curiam); Ngamnimitthum v. Holder, 425 F. Appx. 384,
385 (5th Cir. 2011) (per curiam). Nothing “stood in [petitioner’s way]” that
“prevented timely filing.” See Lugo-Resendez, 831 F.3d at 344.
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Contrary to Londono-Gonzalez’s view, Lugo-Resendez resolved an
open question; it did not constitute an “intervening change in binding
precedent.” See Silverio-Da Silva v. Lynch, 675 F. App’x 487, 488 (5th Cir.
2017). The intervening changes that affected Londono-Gonzalez’s ability to
obtain relief were Vartelas and Carranza-De Salinas. And Londono-
Gonzalez did not seek to reopen his proceedings until three-and-a-half years
after those decisions were issued. The BIA did not err in measuring
Londono-Gonzalez’s diligence from the issuance of Carranza-De Salinas.
Londono-Gonzalez’s petition is DENIED.
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