Filed: Dec. 04, 2020
Latest Update: Dec. 05, 2020
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
GUADALUPE ISMAEL CRUZ,
Petitioner,
v. No. 20-9516
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, HOLMES, and EID, Circuit Judges.
_________________________________
Guadalupe Ismael Cruz petitions for review of an order of the Board of
Immigration Appeals (BIA or Board) denying his motion to reopen his removal
proceedings. We deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
BACKGROUND
Cruz is a native and citizen of Mexico. In 2017, the Department of Homeland
Security served him with a Notice to Appear, charging that he was an alien present in
the United States without being admitted or paroled and therefore subject to removal
from this country. Cruz admitted the allegations in the Notice to Appear, except for
its allegation that he had arrived in the United States in 1976. He contended that he
had arrived several years earlier. He also claimed that his entry at that time may have
been lawful and he therefore did not concede that he was subject to removal. But the
immigration judge (IJ) sustained the charge, finding he had failed to meet his burden
to show that he lawfully entered this country.
Cruz then filed an application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). The IJ held a hearing on the
application, during which Cruz admitted that his prior California convictions for
violating Cal. Health & Safety Code § 11352, prohibiting transportation or
distribution of illegal drugs, and for grand theft auto, likely were convictions for
“particularly serious crime[s]” that disqualified him from asylum or withholding
relief. See 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding).
Thus, the only relief for which he remained eligible was deferral of removal under
the CAT.
Cruz then testified in support of his application. He described his former gang
activities and affiliations, his gang tattoos, his testimony against a rival gang
member, his brother’s death at the hands of gang members, and his fear that he would
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be tortured by gang members or the authorities if he were removed to Mexico. He
also submitted documentary evidence in support of his application, including
information about gang activity in Mexico. Although the IJ concluded he had
testified credibly, she ruled that Cruz had failed to meet his burden of proving that it
was more likely than not that he would be tortured by gang members or the
government if returned to Mexico. She therefore denied the application for CAT
relief and ordered him removed to Mexico.
Cruz appealed to the BIA. On appeal he challenged the IJ’s denial of his claim
for CAT relief. The BIA agreed with the IJ concerning that claim that “considering
the speculative nature of [Cruz’s] claims and the lack of specific corroborating
evidence, he has not established, upon his removal to Mexico, it is more likely than
not that he will be tortured by or at the instigation of or with the consent or
acquiescence (including ‘willful blindness’) of a public official or other person acting
in an official capacity.” Admin. R. at 39.
The BIA dismissed Cruz’s appeal on June 18, 2018. Later that month, he was
removed to Mexico.
In the meantime, Cruz began exploring relief from his disqualifying California
drug conviction. His efforts proved successful. In January 2019, he received an
order from the Superior Court of Los Angeles County vacating the drug conviction
under a law adopted in 2017, Cal. Penal Code § 1473.7. 1
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The parties do not discuss whether the grand theft auto conviction poses a
continued bar to the relief Cruz seeks. In view of our denial of the petition for
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On May 16, 2019, eleven months after the BIA’s decision and four months
after his California drug conviction was vacated, Cruz filed a motion to reopen with
the BIA. He argued that as a result of the California court order he was no longer
subject to the “particularly serious crime” bar. Although he had not filed his motion
within the statutorily prescribed 90-day period following the entry of his final
removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i), he argued that the BIA should
equitably toll the filing deadline. Alternatively, he contended that the BIA should
exercise its sua sponte authority to reopen his case outside the statutory period.
The BIA denied Cruz’s untimely motion to reopen. It held he was not entitled
to equitable tolling because he failed to show due diligence in pursuit of his claim.
The Board further stated that because his motion was untimely and he had been
removed from the United States, the regulatory departure bar prevented him from
seeking reopening. See 8 C.F.R. § 1003.2(d). Finally, it denied sua sponte
reopening, both because Cruz’s request was also barred by the post-departure bar and
because he had failed to show “truly exceptional circumstances or a substantial
likelihood that the result in his case would be changed if reopening were granted.”
Admin. R. at 4.
review on other grounds we find it unnecessary to consider that issue. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
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DISCUSSION
We review the Board’s denial of a motion to reopen for an abuse of discretion.
Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.”
Id. (internal quotation marks omitted). We review the
Board’s legal rulings de novo. See Ferry v. Gonzales,
457 F.3d 1117, 1126 (10th Cir.
2006).
1. Equitable Tolling
A noncitizen may file one motion to reopen “within 90 days of the date of
entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). Cruz
concedes he filed his motion outside this 90-day filing period, but he argues the BIA
should have equitably tolled the deadline.
In denying Cruz’s motion, the BIA noted that equitable tolling applies only
where the noncitizen has exercised due diligence in pursuing reopening during the
requested tolling period. See, e.g., Mahamat v. Gonzales, 430 F.3d 1281, 1283
(10th Cir. 2005) (“For an untimely claim to receive the benefit of equitable tolling,
an alien must demonstrate . . . that [he] has exercised due diligence in pursuing the
case during the period the alien seeks to toll.” (ellipsis and internal quotation marks
omitted)). The Board reasoned he failed to show due diligence because he did not
file his motion until May 16, 2019, nearly two-and-a-half years after the California
law became effective. It explained that although the California law changed before
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the IJ proceedings concluded, Cruz did not assert a change in the law during those
proceedings. The BIA rejected Cruz’s argument that “he should not be expected to
be aware of every development in California’s criminal law,” reasoning that
“ignorance of the law is no excuse.” Admin. R. at 3. Finally, the Board noted the
delay of several months (i.e., more than 90 days) between the date the California
court issued its order vacating his conviction and the date Cruz filed his motion to
reopen.
Cruz argues that the BIA abused its discretion by “fail[ing] to look at . . .
considerations other than time to determine if [his] case warranted equitable tolling”
because “[a] simple cursory comparison of the date of filing and the regulatory time
line for filing motions is not enough.” Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.
2002). But unlike in Riley, the BIA discussed factors other than the delayed filing
itself in reaching its conclusion that Cruz failed to act with due diligence. The BIA’s
findings were adequate, and we discern no abuse of discretion in its rationale for
denying equitable tolling.
2. Post-Departure Bar
Cruz also challenges the BIA’s application of the regulatory post-departure bar
to his motion to reopen. An agency regulation limits the noncitizen’s right to file a
motion to reopen in two ways: the 90-day time bar, which we have already discussed;
and a post-departure bar, which requires that the motion to reopen “shall not be made
by or on behalf of a person . . . subsequent to his or her departure from the United
States.” 8 C.F.R. § 1003.2(d). “Thus, for an alien’s motion to reopen to be legally
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operative under the regulation, it must be filed within ninety days of a removal order
and while the alien is still in the United States—an alien must avoid both bars.”
Reyes-Vargas v. Barr, 958 F.3d 1295, 1304 (10th Cir. 2020) (discussing similar
regulation governing motions to reopen made to IJ).
In Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012)
(en banc), we invalidated the post-departure bar as it pertains to timely motions to
reopen. See
Reyes-Vargas, 958 F.3d at 1304 n.16. But Cruz cannot benefit from our
holding in Contreras-Bocanegra, because his motion to reopen was untimely. He
therefore fails to show the BIA abused its discretion in applying the post-departure
bar to his untimely motion to reopen.
3. Sua Sponte Reopening
The Board also applied the departure bar to Cruz’s request for sua sponte
reopening. This was error. Cf. Reyes-Vargas, 958 F.3d at 1306 (concluding, in
analyzing the IJ’s sua sponte power to reopen removal proceedings, that power is
“not subject to[]the post-departure bar because [8 C.F.R.] § 1003.23(b)(1)’s plain
language [which is similar to § 1003.2(c)(2), (d)] limits only ‘motions to reopen’ to
the ninety-day and post-departure bars, while for sua sponte [reopening, the agency]
may reopen ‘at any time’”). But the Board also reasoned, in the alternative, that Cruz
had “not shown truly exceptional circumstances or a substantial likelihood that the
result in his case would be changed if reopening were granted such that would
warrant the Board’s exercise of its discretion to reopen these proceedings sua
sponte.” Admin. R. at 4. Although Cruz contends the Board’s reasoning was flawed
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and that his case merits sua sponte reopening, we lack jurisdiction to consider those
challenges. See Reyes-Vargas, 958 F.3d at 1300 (“[W]e do not have jurisdiction to
consider a petitioner’s claim that the [Board] should have sua sponte reopened the
proceedings because there are no standards by which to judge the agency’s exercise
of discretion.” (internal quotation marks omitted)). We discern no legal issues
underlying the BIA’s reasoning that we have jurisdiction to review, and we lack
jurisdiction to review its discretionary decision.
CONCLUSION
We deny the petition for review.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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