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  The CtApp cited unpublished 5th Cir decisions, characterizing a request for equitable tolling as a request for the BIA to use its sua sponte discretionary power, so CtApp didn't see it as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?]

Read opinion here: 

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