Background
Veralicia Marroquin Calderon, a native and citizen of El Salvador, sought review of a Board of Immigration Appeals decision denying her motion to reopen removal proceedings. She filed the motion 17 years after those proceedings concluded.
Marroquin Calderon argued that the BIA should have equitably tolled the filing deadline. She also contended that ineffective assistance of counsel supported reopening, that the BIA’s decision prevented her from reapplying for temporary protected status, and that the BIA should have reopened her case on its own initiative.
The Court’s Holding
The Fifth Circuit held that the BIA did not abuse its discretion by declining to apply equitable tolling. Marroquin Calderon presented no evidence that she pursued her rights with due diligence during the 17 years between the conclusion of her removal proceedings and her motion to reopen.
Because she failed to establish an abuse of discretion concerning equitable tolling, the court did not consider her alternative arguments based on ineffective assistance and temporary protected status. It also held that it lacked jurisdiction to review her claim that the BIA should have exercised its sua sponte reopening authority. The court therefore denied the petition in part and dismissed it in part.
Key Takeaways
- A noncitizen seeking equitable tolling of the deadline for a motion to reopen must produce evidence of due diligence.
- An unexplained 17-year period without evidence of pursuing one’s rights did not satisfy that requirement.
- The Fifth Circuit lacks jurisdiction to review the BIA’s refusal to reopen removal proceedings sua sponte.
Why It Matters
The decision underscores that a potentially viable underlying claim does not eliminate the need to justify an untimely motion to reopen. Applicants relying on equitable tolling must document diligent efforts throughout the relevant period.
It also reinforces the jurisdictional limit preventing Fifth Circuit review of the BIA’s discretionary refusal to invoke its sua sponte reopening authority.