U.S.

Department of Justice

Executive Office for Immigration Review

Board({ Immigration Appeals
Qffice of the Clerk
5/071.ceshr,rg Pike. S11ite 2000
Falls Church. Virginia 2204 I

DHS/ICE Office of Chief Counsel - HOD

126 Northpoint Drive, Suite 202
HOUSTON, TX 77060

Name: GUERRERO-SOTO, JOSE

A 091-225-150

Date of this notice: 11/17/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Don.nL c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Jose Guerrero-Soto, A091 225 150 (BIA Nov. 17, 2015)

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Gonzalez, Raed, Esq.

Gonzalez Olivieri LLC
2200 Southwest Frwy Ste 550
Houston, TX 77098

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A09l 225 150 - Houston, TX

Date:

NOV 1 7 2015

In re: JOSE GUERRERO-SOTO a.k.a. Jose Guillermo Guerrero-Soto

APPEAL
ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Mexico who had become a lawful permanent resident
in 1989, was ordered removed by an Immigration Judge in 2005, pursuant to the respondent's
Texas conviction that year of possession of cocaine. For purposes of removal, the conviction
was considered both an aggravated felony for illicit trafficking in a controlled substance, and a
controlled substance violation. See sections 237(a)(2)(A)(iii), 237(a)(2)(B)(i) of the Immigration
and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), 237(a)(2)(B)(i). The respondent did not
appeal the Immigration Judge's order and departed the United States.
In December 2014, the respondent filed a motion with the Immigration Court requesting
reopening based upon the United States Supreme Court decision, Lopez v. Gonzales, 549 U.S.
47, 66, 127 S. Ct. 625 (2006), which held that state felony drug-possession crimes are not
aggravated felonies for removal purposes unless punishable as a felony under the Controlled
Substances Act. Further, the respondent maintained that the Fifth Circuit's more recent decision,
Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012), now allowed him to file a "statutory"
motion to reopen, notwithstanding his departure from the United States, and that the 90-day
motions deadline should thus be equitably tolled as he acted within a reasonable period after this
case was issued. See section 240(c)(7) of the Immigration and Nationality Act, 8 U.S.C.
1229a(c)(7); see also 8 C.F.R. 1003.23(b)(l) (the "departure bar"). As the aggravated-felony
ground of removability would no longer be valid in reopened removal proceedings, the
respondent maintains, he could apply for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(a).
In a February 4, 2015 decision, a second Immigration Judge denied the motion as untimely,
and further observed that the Fifth Circuit has not adopted the doctrine of equitable tolling in the
motion to reopen context (I.J. at 2). The Immigration Judge noted that the circuit court instead
construes such a request as one for sua sponte reopening (I.J. at 2). Although Immigration
Judges have the power to reconsider sua sponte cases that had been previously before them,
8 C.F.R. 1003.23(b)(l), the Immigration Judge held that that power cannot be invoked if the
respondent has departed the United States. See Matter of Armendarez, 24 l&N Dec. 646 (BIA
2008). The respondent appealed. The record will be remanded.
We review Immigration Judges' findings of fact for clear error; but we review questions of
law, discretion, and judgment, and all other issues in appeals before us, de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).

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Cite as: Jose Guerrero-Soto, A091 225 150 (BIA Nov. 17, 2015)
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IN REMOVAL PROCEEDINGS

 -A091 225 150

After the Immigration Judge rendered his decision, the Supreme Court reversed the Fifth
Circuit in Mata v. Lynch, 576 U.S. _, 135 S.Ct. 2150 (2015), a case involving the circuit
court's jurisdiction over an untimely motion. Therein, the Supreme Court noted that the Fifth
Circuit had impermissibly interpreted a request for equitable tolling of the motions deadline as a
request for sua sponte reopening. Mata, supra, slip op. at 6. Thus, notwithstanding Fifth Circuit
case law to the contrary, a request for equitable tolling is a separate request from one that seeks
sua sponte reopening. While a request for sua sponte reopening may still be subject to the
departure bar, per Garcia-Carias it is a separate question whether a respondent has a right to file
a motion after leaving the United States. Further, per Mata, the request for equitable tolling of
the deadline-and presumably the distinct issues that must be addressed to adjudicate that
request-is separate from a request for sua sponte reopening. To determine whether the motions
deadline can be equitably tolled, the Immigration Judge will need to make direct findings on the
factors that would or would not permit equitable tolling in this case, separate from the sua sponte
question.
We express no opinion on whether the Immigration Judge should toll, for equitable reasons,
the filing deadline for the motion, or what the ultimate outcome in this case might be. On
remand, the parties should be afforded a reasonable opportunity to submit additional evidence
and argument. In light of the foregoing, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings and a
new decision consistent with the foregoing opinion.

"\: Q

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The Immigration Judge acknowledged that pursuant to Garcia-Carias v. Holder, supra, the
departure bar cannot, itself, prevent a respondent from filing a statutorily permitted motion to
reopen. The Fifth Circuit, in that case, which involved a motion filed years after the 90-day
deadline had passed, however, expressly declined to address question of whether the motion was
timely. Id. at 261, n. 1. As noted, the motion in the present case was held to be untimely by the
Immigration Judge. But the Immigration Judge did not separately rule on whether the filing
deadline could be equitably tolled since, as the court interpreted controlling law, such a request is
necessarily considered only a request for sua sponte reopening. The respondent, however, argues
that if the deadline can be equitably tolled, that per Garcia-Carias he is statutorily entitled to file
a motion from outside the United States, and that in light of a recent United States Supreme
Court decision, such a request for equitable tolling is separate from a request for sua sponte
reopening. Cf Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) (departure bar applies to motions
for sua sponte reopening).

FOR THE BOARD

2
Cite as: Jose Guerrero-Soto, A091 225 150 (BIA Nov. 17, 2015)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5520 GREENS ROAD
HOUSTON, TX 77032

IN THE MATTER OF
GUERRERO-SOTO, JOSE

FILE A 091-225-150

DATE: Feb 4, 2015'

UNABLE TO FORWARD - NO ADDRESS PROVI,PP

-TTACHED IS A COPY OF THE DECISION /HE IMMIGRATION JUDGE. THIS/DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTENc_:pECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPAR!NG YOUR.APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF.THE IMMIGRATION JUDGE AS THE RESULT,
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c} (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED W!TH THIS COURT:
IMMIGRATION_COURT
5520 GREENS ROAD
HOUSTON, TX - 77032

' .

OTHER:

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CC: JAMES E. MANNING, A.D.C.

126 NORTHPOINT DR., ROOM 2020
,HOUSTO,
TX, 770600000

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COORT ttERK - - .
IMMIGRATION COURT

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GONZALEZ OLIVIERI LLC.

GONZALEZ, ESQ., RAED
2200 SOUTHWEST FWY, *550
HOUSTON, TX 77098

IN THE MATTER OF
Jose Guerrero-Soto
Respondent.

)
)
)
)
)

IN REMOVAL PROCEEDINGS
File No. A091-225-150

)
ON BEHALF OF THE RESPONDENT:
Raed Gonzalez, Esq.
Gonzalez Olivieri, LLC.
2200 Southwest Freeway, Ste. 550
Houston, Texas 77098

ON BEHALF OF THE GOVERNMENT:

Jrunes Manning, Assistant Chief Counsel
Department of Homeland Security

MEMORANDUM AND DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of Mexico whose status was adjusted to that of a
lawful permanent resident on May 19, 1989. Exh. 1. On August 3, 2005, Respondent was
convicted in Texas for possession of cocaine and sentenced to 180 days confinement. Exh. 3.
On November 2, 2005, the Department of Homeland Security served Respondent with a Notice
to Appear (NTA), charging him with removability pursuant to: (1) Section 237(a)(2)(A)(iii) of
the Immigration and Nationality Act (INA), as an alien who, at any time after admission, has
been convicted of an aggravated felony, as defined in INA 10l(a)(43)(B), to wit: illicit
trafficking in a controlled substance; and (2) INA 237(a)(2)(B)(i), as an alien who, at any time
after admission, has been convicted of a violation of a state law relating to a controlled substance
other than a single offense involving possession, for one's own use, of 30 grruns or less of
marijuana. Exh. 1.
At a master calendar hearing on November 17, 2005, Respondent, through counsel,
admitted factual allegations one through three contained in the NTA but denied factual allegation
four, as well as the charges of removability. Based on Respondent's admissions and record of
conviction, the prior Immigration Judge sustained the charges and ordered Respondent removed
from the United States to Mexico. Respondent waived appeal of the Court's decision and was
thereafter physically removed from the United States. See Respondent's Motion to Reopen at 2
(Dec. 18, 2014).
On December 18, 2014, Respondent filed the present Motion to Reopen, in which he
requests that the Court reopen his case, rescind the 2005 order of removal, and permit him to
apply for lawful permanent resident cancellation of removal, based on subsequent changes in the
law. Respondent's Motion to Reopen at 3-7. On January 16, 2015, the Department of Homeland

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON SERVICE PROCESSING CENTER
HOUSTON, TEXAS

,_.
Security filed its Opposition to Respondent's Motion to Reopen, and on January 26, 2015,
Respondent filed a response brief.

Respondent argues that the untimeliness of his motion to reopen should be excused
because his conviction is no longer considered an aggravated felony barring him from
cancellation of removal, following the U.S. Supreme Court's decision in Lopez v. Gonzalez, 127
S.Ct. 625 (2006) (holding that a conviction for simple possession of cocaine does not constitute
an aggravated felony under INA 10l(a)(43)(B)). Respondent's Motion to Reopen at 3-4. He
further contends that he was prevented by the departure bar set forth in 8 C.F.R. 1003.23(b)(l)
from timely filing the instant motion to reopen, until the issuance of the Fifth Circuit's decision
in Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012). Id. at 4-6. He thus asserted that
the ninety day deadline should be equitably tolled. Id. However, the Court observes that the
Fifth Circuit has not adopted the doctrine of equitable tolling in the context of a motion to
reopen. See Joseph v. Holder, 720 F.3d 228, 231 (5th Cir. 2013); Ramos-Bonilla v. Mukasey,
543 F.3d 216, 220 (5th Cir. 2008). Instead, the Fifth Circuit construes such an argument as a
request for the Court to reopen proceedings sua sponte. Idat 231, 543 F.3d at 220.
The Court holds that it lacks jurisdiction to reopen sua sponte because Respondent
departed from the United States under a final order of removal. Pursuant to 8 C.F.R.
1003.23(b)(l), a "motion to reopen or to reconsider shall not be made by or on behalf of a
person who is the subject of removal, deportation, or exclusion proceedings subsequent to his
departure from the United States." The Fifth Circuit has held that this regulation, known as the
"departure bar," does not apply within the context of statutory motions to reopen made in
removal proceedings. Garcia-Carias, 691 F.3d at 263. ("[INA 240(c)(7)] unambiguously
gives aliens a right to file a motion to reopen regardless of whether they have left the United
States"). Thus, an Immigration Judge has jurisdiction to entertain a motion to reopen in removal
proceedings made pursuant to INA 240(c)(7) even if the alien has been removed from the
United States. However, this authority does not extend to sua sponte motions to reopen, which
are regulatory in nature and subject to the departure bar. Garcia-Carias, 691 F.3d at 263;
Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009); Navarro-Miranda v. Ashcroft, 330 F.3d 672
(5th Cir. 2003). Consequently, the Court lacks jurisdiction to sua sponte reopen proceedings,
and must deny Respondent's motion.
Accordingly, the following order is issued:

A091-225-l 50

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Motions to reopen are governed by INA 240(c)(7) and 8 C.F.R. 1003.23(b). Only
one motion to reopen is allowed, and it must be filed within ninety days of a final administrative
order. INA 240(c)(7)(A), (c)(7)(C)(i). Respondent's motion to reopen was filed on December
14, 2014, more than nine years after the final administrative order in his case. Therefore, it was
untimely filed. Respondent's motion to reopen does not fall within any of the exceptions to
timeliness set forth in INA 240(c)(7)(C) and 8 C.F.R. 1003.23(b). Consequently, the
untimeliness of his motion to reopen is not excused and reopening is not statutorily authorized.

ORDER

IT IS HEREBY ORDERED that Respon

A0 9 I -225- 1 50

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Date

dent's motion to reopen is denied.

Saul Greenstein
Immigration Judge

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