Artemio Solis Rivera v. William Barr, U. S. Atty G

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-60721
Summary Calendar

ARTEMIO SOLIS RIVERA,

Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A034 685 712

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Artemio Solis Rivera, a native and citizen of Mexico, entered the United
States in 1974 as a permanent resident. He was removed in 2002 after being
convicted of a controlled-substance violation. He petitions this court for review
of the decision of the Board of Immigration Appeals (“BIA”) affirming the
immigration judge’s denial of the motion to reopen his removal proceedings.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 7, 2020

Lyle W. Cayce
Clerk
Case: 18-60721 Document: 00515261648 Page: 1 Date Filed: 01/07/2020

No. 18-60721
2
Rivera had filed the motion so he could apply for a waiver of inadmissibility
under former Section 212(c) of the Immigration and Nationality Act.
Our review of a denial of a motion to reopen uses a “highly deferential
abuse-of-discretion standard, regardless of the basis of the alien’s request for
relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). A motion
to reopen must be filed “within 90 days of the date of entry of a final
administrative order of removal,” subject to exceptions not relevant here.
8 U.S.C. § 1229a(c)(7)(C)(i). Motions to reopen under that Section are subject
to equitable tolling. Lugo-Resendez v. Lynch, 831 F.3d 337, 343–44 (5th Cir.
2016). There are two requirements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Id. at 344 (quotation marks and citation omitted).
Rivera’s reliance on Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir.
2017), is misplaced. Our decision there turned on the petitioner’s failure to
provide facts supporting her theory of relief. Id. at 305. Rivera cites no other
authority to support that diligence is evaluated from the time of actual
discovery of a basis for challenging a removal order. As the BIA found, Solis
Rivera failed to provide any explanation for the 15-year delay in pursuing his
rights. The BIA did not abuse its discretion in determining that Solis Rivera’s
motion to reopen was untimely. See id.
Solis Rivera also challenges the BIA’s affirmance of the immigration
judge’s decision not to reopen removal proceedings sua sponte. That authority
to reopen is entirely discretionary, leaving us no jurisdiction to review a refusal
to do so. See id. at 306.
The petition for review is DENIED in part and DISMISSED in part for
lack of jurisdiction.
Case: 18-60721 Document: 00515261648 Page: 2 Date Filed: 01/07/2020