Franklin David Galindo-Borjas, a native and citizen of Honduras, entered the United States without admission or parole and was charged as removable under federal immigration law. After an Immigration Judge denied his motion for cancellation of removal, the Board of Immigration Appeals (BIA) dismissed his appeal as untimely and denied a subsequent motion to reconsider. Galindo-Borjas then filed a motion to reopen, arguing that he should be granted equitable tolling to excuse the delay in filing. The BIA denied this motion, and Galindo-Borjas petitioned the Fifth Circuit for review, challenging the denial on the grounds that he exercised due diligence and that his case involved a due process violation requiring a different standard of review.
The Fifth Circuit, in a per curiam opinion, addressed two primary issues. First, the court evaluated whether the BIA abused its discretion in denying equitable tolling for the motion to reopen. The court noted that nearly eight months passed between the denial of the motion to reconsider and the filing of the motion to reopen. Citing Diaz v. Sessions and Nunez v. Sessions, the court held that Galindo-Borjas failed to demonstrate that he exercised the necessary due diligence to justify the delay, and thus the BIA did not abuse its discretion in declining to apply equitable tolling. Second, the court addressed the petitioner's argument that the review should be de novo because the underlying challenge involved a due process violation. The court rejected this, citing Garcia Morin v. Bondi, stating that due process considerations do not apply to motions to reopen proceedings. Consequently, the abuse of discretion standard remained the correct framework for the court's review.
The BIA's dismissal of the motion to reopen stands, leaving Galindo-Borjas subject to removal proceedings. The decision reinforces the strict application of equitable tolling requirements in the Fifth Circuit for motions to reopen and clarifies that due process arguments do not shift the standard of review from abuse of discretion to de novo in this specific procedural context. No remand instructions were issued as the petition was denied.
Podcast (federal-narrative-summaries): Play in new window | Download