Background
Ana Ailed Quesada-Ladron De Guevara, a native and citizen of Cuba, was ordered removed in absentia after failing to appear at her immigration hearing. She subsequently moved to reopen her proceedings to rescind that order under 8 U.S.C. § 1229a(b)(5)(C)(i), which permits rescission of an in absentia order upon a showing of exceptional circumstances if the motion is filed within 180 days of the order’s entry. An immigration judge denied the motion, and the Board of Immigration Appeals (BIA) dismissed her appeal.
Quesada-Ladron De Guevara then petitioned the Fifth Circuit for review. She argued that she had demonstrated extraordinary circumstances justifying reopening and that the BIA’s denial violated due process. She also sought equitable tolling of the 180-day filing deadline. Critically, her motion to reopen was filed five years after the limitations period expired, and she waited more than two years before consulting an attorney despite possessing contact information for the immigration court.
The case arose under the Migrant Protection Protocols framework, and Quesada-Ladron De Guevara’s MPP documents — as well as her notice of hearing — contained the immigration court’s contact information. The BIA found that she had not shown due diligence and that her motion was untimely, rendering extraordinary circumstances analysis unnecessary.
The Court’s Holding
The Fifth Circuit denied the petition for review in a per curiam opinion. The court held that Quesada-Ladron De Guevara forfeited review of the BIA’s dispositive timeliness ruling by failing to challenge it in her brief. To obtain rescission of an in absentia order under § 1229a(b)(5)(C)(i), an alien must satisfy both the 180-day limitations period and the extraordinary circumstances requirement. Because she argued only the latter, she abandoned any challenge to the former — the threshold ground on which the BIA rested its decision.
The court also declined to consider her due process claim, which she had failed to exhaust before the BIA. It further noted, in the alternative, that a denial of a motion to reopen cannot violate due process because that decision is purely discretionary and implicates no protected liberty interest, citing Mejia v. Barr, 952 F.3d 255 (5th Cir. 2020).
On equitable tolling, the court agreed with the BIA that Quesada-Ladron De Guevara failed to demonstrate the requisite due diligence. She had the immigration court’s contact information in her possession, knew she had missed her hearing, yet made no effort to contact the court by phone or mail within the 180-day window. She then waited over two years to retain counsel and filed her motion to reopen five years after the limitations period had run.
Key Takeaways
- A petitioner challenging a BIA ruling must address every independent, dispositive ground for the agency’s decision or risk forfeiting review of the unchallenged ground.
- Equitable tolling of the 180-day deadline to reopen an in absentia removal order requires a showing of due diligence; possessing court contact information and doing nothing for years is fatal to that showing.
- Failure to exhaust a due process claim in a BIA brief bars Fifth Circuit review of that claim, and in any event a discretionary denial of a motion to reopen does not implicate a constitutionally protected liberty interest.
Why It Matters
This decision reinforces the Fifth Circuit’s strict approach to issue preservation in immigration appeals: challenging only one prong of a conjunctive two-part test is insufficient when the agency decided the case on the other prong. Practitioners must ensure that appellate briefs squarely address each independent ground on which the BIA relied, or those grounds will be treated as conceded.
The ruling also underscores the high bar for equitable tolling in removal proceedings. Even pro se litigants who miss a hearing are expected to take affirmative steps — such as contacting the immigration court by phone or mail — within the statutory window, particularly when they already hold the court’s contact information. A multi-year delay in seeking legal help will not excuse an untimely filing absent compelling evidence of diligence.