Background
Yasmina Marbella Cardoza-Bonilla, a native and citizen of Honduras, sought review of the Board of Immigration Appeals’ denial of her motion to reopen removal proceedings. Her then-minor child, Diana Gabriela Recarte-Cardoza, was a derivative beneficiary of her application for relief.
Cardoza filed the motion after the applicable 90-day deadline and argued that equitable tolling should excuse its untimeliness. She asserted that she had pursued her rights diligently and that extraordinary circumstances prevented a timely filing. She also challenged the BIA’s refusal to reopen the proceedings on its own motion.
The Court’s Holding
The Fifth Circuit held that the BIA did not abuse its discretion in finding that Cardoza failed to establish diligence. The court concluded that her failure to identify steps she took to pursue relief during four years of inaction supported the BIA’s determination that she had not diligently pursued her rights.
Because diligence is a necessary element of equitable tolling, that failure defeated Cardoza’s claim without requiring the court to decide whether extraordinary circumstances had prevented timely filing. The court therefore denied that portion of the petition.
The court separately held that it lacked jurisdiction to review the BIA’s discretionary refusal to reopen the proceedings sua sponte. It dismissed that portion of the petition for lack of jurisdiction.
Key Takeaways
- A noncitizen seeking equitable tolling of the 90-day deadline for a motion to reopen must demonstrate diligent pursuit of relief as well as extraordinary circumstances.
- Four years of unexplained inaction supported the BIA’s finding that Cardoza lacked the required diligence.
- The Fifth Circuit lacks jurisdiction to review the BIA’s discretionary refusal to reopen immigration proceedings sua sponte.
Why It Matters
The decision underscores that equitable tolling requires a concrete account of what the applicant did to pursue relief throughout the period of delay. An asserted extraordinary circumstance cannot save an untimely motion when the applicant fails to establish diligence.
It also reinforces the jurisdictional barrier to challenging the BIA’s discretionary decision not to reopen a case sua sponte in the Fifth Circuit.