The 5th Cir found a suppression motion beside the point, when the Defendant had already conceded that he was present in the US after a prior removal order. He had been picked up by a sheriff in a small Texas town, who supposedly knew everyone. But when his motion to suppress was denied, he stipulated away too much, by failing to "expressly reserve their right to appeal from the order denying the motion to suppress." [Bummer]
In illegal reentry / sentencing enhancement case, the CtApp found that James v. United States, 127 S. Ct. 1586, 1599-1600 (2007), did not overturn United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), which held that burglary of a habitation was a crime of violence. The CtApp first held that the analysis in James was dicta, and second, that the FL offense in James included trespass onto the land (curtilage) around home, whereas TX offense only includes burglary of the actual house.
The Government sought a sentence enhancement in illegal reentry case, arguing that Defendant's prior conviction for Illinois delivery of drugs was an aggravated felony. He argued that IL accomplice liability was broader than the federal scheme, because it included "solicitation" of the crime, so not an AggFel. The 5th Cir held that under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), there was no substantial difference between IL law and the federal law.
[Illinois] Solicitation is further defined as “to command, authorize, urge, incite, request, or advise another to commit an offense.” The practical meaning of this list of verbs does not differ from the practical meaning of the federal list in such a way as to make the Illinois statute more broad. For instance, a defendant under federal law found to have factually “requested” or “advised” a crime could reasonably be found guilty of having “induced” or “counseled” the crime. * * * *
The word “solicit” in the accountability law of Illinois does not create a separate offense based on a solicitation or an offer to sell. As used, solicit refers to conduct that subjects a defendant to liability for the substantive delivery offense if the other elements of accountability, including intent and commission of the offense, are satisfied. In contrast, statutes criminalizing an offer or solicitation create separate crimes from the substantive delivery offense that are complete upon the solicitation, do not require commission of the delivery offense, and do not rest upon imputation of the acts of the principal to the solicitor. Whether a separate offense of criminal solicitation would support enhancement under the Guidelines is not presented and we do not reach that question.
US v. Gonzalez, 484 F.3d 712 (5th Cir. 2007), distinguished.
Ramos-Bonilla v. Mukasey (5th Cir. Sept. 18, 2008)
PRADO King DeMoss
The 5th Cir found no jurisdiction over BIA's refusal to sua sponte reopen a NACARA-eligible individual's case. Original atty filed mtn to reopen timely, but sent the NACARA App to the VSC (under NACARA reopening, there were deadlines for the mtn to reopen, and another deadline for the I-881). Atty later told the IJ it had been sent to the wrong place, but IJ denied reopening because of untimely filing of I-881. BIA affirmed, no PfR filed. 5 years later, Petitioner sought reopening per Lozada. BIA said it was time and number-barred, and even if equitable tolling could be applied, it wouldn't help here, because no due diligence. In a mtn seeking reconsideration, Petitioner submitted an affidavit, explaining that he tried to file sooner, but couldn't find anyone to help him. BIA characterized it as a 3d mtn to reopen, denied. On appeal, he argued that BIA's refusal to equitably toll or waive number limitations was error; and that Govt was equitably estopped from opposing, since it didn't forward I-881 from VSC to EOIR.
On the latter point, the CtApp found that the issue hadn't been exhausted, since it wasn't raised below. So denied on that point.
Re equitable tolling, CtApp said that because Petitioner blew the NACARA deadline, the only remedy was via the sua sponte power. Because that has no standard against which it can be judged, CtApp couldn't review it, per Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004) (citing Heckler v. Chaney, 470 U.S. 821, 830 (1985)). In footnote, noting that 1252(a)(2)(B)(ii) didn't apply, since discretion was granted by regulation, not statute. The CtApp cited unpublished 5th Cir decisions, characterizing a request for equitable tolling as a request for the BIA to use its sua sponte discretionary power, so CtApp didn't see it as a legal issue, but a discretionary one.
[CR: Perhaps the *decision* of whether to equitably toll is discretionary, the authority of the BIA to equitably toll is legal? But couldn't the CtApp still review for legal error in how the Board decides whether to equitably toll, e.g., if BIA denied equitable tolling on basis of race?]
Where an I-140 was approved and visa numbers available when I-485 filed, but numbers retrogressed, BIA abused its discretion in denying a continuance. The CtApp treated the request for abeyance (which BIA treated as Admin Closure) as a continuance request. Noting prior Board precedent finding OIs persuasive, and published decision in Matter of Ho, 15 I. & N. Dec. 692 (BIA 1976), applying this OI, CtApp found denial of continuance to be abuse of discretion.
Despite the fact that BIA decisions are binding on IJs in their administration of United States immigration laws, we find no indication in either of his rulings that the IJ considered Matter of Ho. Moreover, the BIA itself is required to follow its own precedent unless overruled or modified * * * *
[Because] the BIA and the IJ apparently failed to consider OI 245.4(a)(6) in their rulings denying Masih relief, despite that regulation’s clear applicability and Masih’s express reliance on it, and [given] the BIA’s cursory—and curious—disregard of Matter of Ho, we hold that the BIA abused its discretion in denying Masih’s request for a continuance or abeyance of his removal proceedings.
Fifth Circuit 
