Background
The petitioner, a native and citizen of Cuba, sought review of a Board of Immigration Appeals decision dismissing her appeal from an immigration judge’s denial of a motion to reopen her proceedings to rescind an in absentia removal order. She argued she established extraordinary circumstances but did not address the Board’s finding that her motion was untimely.
The court’s reasoning
The court held that the petitioner failed to show the Board abused its discretion. She forfeited review of the dispositive finding that her motion was untimely under Section twelve hundred twenty-nine A subsection B paragraph five subsection C clause one because she only argued extraordinary circumstances. The court also declined to consider her due process claim as it was not exhausted before the Board. Furthermore, the court noted that a denial of a motion to reopen cannot violate the Due Process Clause because the decision is purely discretionary. The petitioner failed to establish equitable tolling because she was not diligent; she had contact information for the court in her Migrant Protection Protocol documents and hearing notice but inexplicably failed to contact the court. She waited more than two years to contact a lawyer and filed her motion five years after the limitations period expired.
What it means going forward
The decision reinforces that petitioners must timely file motions to reopen and diligently pursue contact with immigration courts to establish extraordinary circumstances for equitable tolling.