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U.S.

Department,/"" Justice
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Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Fleury, Katrina L. OHS/ICE Office of Chief Counsel - PIS
Texas RioGrande Legal Aid 27991 Buena Vista Blvd
316 S. Closner Blvd. Los Fresnos, TX 78566
Edinburg, TX 78539

Name: RINCON-GARCIA, SAUL A 034-338-426

Date of this notice: 11/27/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John
Kelly, Edward F.
Kendall Clark, Molly

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Userteam: Docket

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Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)
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lJ.S. Department of Jusuce Decision 01 the Board oflmrnigration Appeals


· .,

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A034 338 426-Los Fresnos, TX Date: NOV 2 7 2017

In re: Saul RINCON-GARCIA a.k.a. Saul Garcia

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IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Katrina L. Fleury, Esquire

ON BEHALF OF DHS: Ariel Chino


Assistant Chief Counsel

APPLICATION: Reopening; termination

This matter1 was last before the Board on July 29, 2015, when we dismissed the respondent's
appeal from the Immigration Judge's decision denying his application for cancellation of removal
· for certain permanent residents pursuant to section 240A(a) of the Immigration and Nationality
Act, 8 U.S.C. § 1229a(a). The respondent has now filed an untimely motion to reopen and
terminate. The Department of Homeland Security (DHS) opposes the motion. The motion to
reopen will be granted and the proceedings will be terminated without prejudice.

The respondent was found removable as charged under section 237(a)(2)(A)(ii) of the Act,
8 U.S.C § 1227(a)(2)(A)(ii), as an alien who, at any time after admission, was convicted of two or
more crimes involving moral turpitude (U at 1, Feb. 25, 2015). The respondent requests that the
proceedings be reopened because he is no longer removable as charged in light of the United States
Court of Appeals for the Fifth Circuit's holding in Gomez-Perez v. Lynch, 829 F.3d 323 (2016).
The respondent acknowledges that his motion is untimely but requests equitable tolling of the
filing deadline. The DHS opposes the motion, arguing that equitable tolling is not warranted.

To be allowed equitable tolling, the respondent must establish: (1) that he had been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing of the motion to reopen. See Lugo-Resendez v. Lynch, 831 F.3d 337, 343-45

(5th Cir. 2016); see also Mata v. Lynch, 135 S. Ct. 2150, 2155-56 (2015).

We conclude that the respondent has demonstrated that equitable tolling of the filing deadline
for his motion to reopen is warranted. In light of the unique factors presented by this case,
including the fact that the respondent suffers from severe mental illness, the lack of resources he
faced following his removal, and the actions he took upon learning of the Fifth Circuit's holding

1 These removal proceedings were initiated upon the filing of a Notice to Appear (NTA) filed with
the Immigration Court on December 10, 2014. The respondent was subsequently placed in
removal proceedings pursuant to an NTA filed with the Immigration Court on March 7, 2017. The
respondent has filed an appeal from the Immigration Judge's decision in his second removal
proceedings. That appeal is addressed in a separate decision.

Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)
A034 338 426

in Gomez-Perez v. Lynch, we find that the respondent has demonstrated both the existence of
exceptional circumstances and that he has exercised due diligence such that equitable tolling is
warranted. See Lugo-Resendez v. Lynch, 831 F.3d at 344-45 (stating that the equitable tolling
standard should not be applied too harshly and that, in assessing whether equitable tolling is
warranted, the Board "should give due consideration to the reality that many departed aliens are

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poor, uneducated, unskilled in the English language, and effectively unable to follow
developments in the American legal system").

The respondent, who was admitted to the United States as a lawful permanent resident in 1973,
has several convictions for assault pursuant to 22.0l(a)(l) of the Texas Penal Code and one
conviction for aggravated assault with a deadly weapon pursuant to section 22.02(a)(2) of the
Texas Penal Code. In Gomez-Perez v. Lynch, 829 F.3d 323, the Fifth Circuit held that a violation
of section 22.0l(a)(l) of the Texas Penal Code is categorically not a crime involving moral because
the statute is overbroad. Because the respondent is not an alien who, at any time after admission,
was convicted of two or more crimes involving moral turpitude, he is not removable under section
237(a)(2)(A)(ii) of the Act. Accordingly, we grant the respondent's motion to reopen and the
proceedings will be terminated without prejudice. The following orders will be entered.

ORDER: The respondent's motion to reopen is granted.

FURTHER ORDER: The removal proceedings are terminated.

2
Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)