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Sallah Lembou v. Garland, 21-60326 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60326 Visitors: 28
Filed: Oct. 12, 2021
Latest Update: Oct. 13, 2021
Case: 21-60326     Document: 00516051683         Page: 1     Date Filed: 10/12/2021




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     October 12, 2021
                                  No. 21-60326
                                                                       Lyle W. Cayce
                                Summary Calendar                            Clerk


   Georges Sallah Lembou,

                                                                       Petitioner,

                                       versus

   Merrick Garland, U.S. Attorney General,

                                                                     Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A207 366 356


   Before Jolly, Willett, and Ho, Circuit Judges.
   Per Curiam:*
          Georges Sallah Lembou, a native and citizen of Gabon, petitions for
   review of an order by the Board of Immigration Appeals (BIA) denying his
   motions for reconsideration and reopening. Sallah Lembou contends that the
   BIA erred by not appropriately considering that his physical injuries and


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60326      Document: 00516051683           Page: 2    Date Filed: 10/12/2021




                                     No. 21-60326


   mental disorientation affected his ability to diligently pursue his rights and
   caused exceptional circumstances warranting equitable tolling of the filing
   deadlines. Sallah Lembou further argues that his positive equities, potential
   eligibility for adjustment of status, and volatile medical and mental
   predicament justified sua sponte reopening and that the BIA’s failure to
   exercise its sua sponte authority was an abuse of discretion and equated to a
   deprivation of his due process rights and his right to a fair hearing.
          We review denials of motions to reopen and reconsider removal
   proceedings under a highly deferential abuse-of-discretion standard. Lowe
   v. Sessions, 
872 F.3d 713
, 715 & n.1 (5th Cir. 2017). It is uncontested that
   Sallah Lembou’s motion to reconsider was untimely and that his motion to
   reopen was untimely and numerically barred. See 8 U.S.C. § 1229a(c)(6)(B),
   (c)(7); 8 C.F.R. § 1003.2(b)-(c). To obtain equitable tolling of the time and
   numeric limits, a movant must establish (1) that he pursued his rights
   diligently and “(2) that some extraordinary circumstance stood in his way
   and prevented timely filing.” Lugo-Resendez v. Lynch, 
831 F.3d 337
, 344 (5th
   Cir. 2016).
          The BIA did not abuse its discretion in determining that Sallah
   Lembou was not entitled to equitable tolling. See 
id. at 344-45
. Nothing in
   the record shows “an extraordinary circumstance beyond [Sallah Lembou’s]
   control [that] prevented him from complying with the applicable deadline.”
   
Id. at 344
 (internal quotation marks omitted). Moreover, the BIA’s decision
   does not reflect an unacceptably harsh application of equitable tolling. 
Id. at 345
.
          To the extent Sallah Lembou argues that the BIA abused its discretion
   in failing to exercise its sua sponte authority to reopen the proceedings, we
   lack jurisdiction to review that portion of Sallah Lembou’s petition. See
   Hernandez-Castillo v. Sessions, 
875 F.3d 199
, 206 (5th Cir. 2017). To the




                                          2
Case: 21-60326        Document: 00516051683        Page: 3    Date Filed: 10/12/2021




                                    No. 21-60326


   extent that he raises a due process claim based on the BIA’s refusal to
   exercise its sua sponte authority to reopen the proceedings, there is no liberty
   interest in a motion to reopen; thus, Sallah Lembou cannot establish a due
   process violation. See Altamirano-Lopez v. Gonzales, 
435 F.3d 547
, 550-51
   (5th Cir. 2006).
          The petition for review is DENIED IN PART and DISMISSED
   IN PART.




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Source:  CourtListener

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