Carlos Peralta-Baca v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60522 Affirmed ] Judge: PEH , Judge: EHJ , Judge: JES Mandate issue date is 12/12/2017 [16-60522]

Case: 16-60522

Document: 00514204278

Page: 1

Date Filed: 10/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60522
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 20, 2017
Lyle W. Cayce
Clerk

CARLOS JOEL PERALTA-BACA,

Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 742 006
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Carlos Joel Peralta-Baca seeks review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from the denial of a motion
to reopen removal proceedings.

Peralta-Baca entered the United States

without authorization in February 2004. He was personally served with a
Notice to Appear advising him that if he did not attend a removal hearing to
be held in June 2004, a removal order could be entered and he could be

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-60522

Document: 00514204278

Page: 2

Date Filed: 10/20/2017

No. 16-60522
deported. When he did not attend that June 2004 hearing, he was ordered,
in absentia to be removed. He was found and deported in 2007, but he returned
to the United States illegally a few months later. He later married a United
States citizen, and in 2015 he moved to reopen the removal proceedings. The
immigration judge (IJ) denied the motion, in part because it was untimely by
many years. The BIA dismissed Peralta-Baca’s appeal from that denial.
Peralta-Baca’s contention that the IJ and BIA failed to consider his claim
of inadequate written notice lacks arguable merit.

It is undisputed that

Peralta-Baca received actual, personal notice. He does not explain what more
consideration was due, and personal service was adequate.

See 8 U.S.C.

§ 1229(a)(1) (providing for service by mail “if personal service is not
practicable”).
In addition, Peralta-Baca contends that he was entitled to equitable
tolling of the applicable 180-day limitation period for filing a motion to reopen.
He failed to show that his reliance on a non-lawyer’s promise to help him obtain
a change of venue constituted exceptional circumstances. Moreover, he failed
to show diligence because he failed to move to reopen until the passage of more
than 10 years from the date of the removal order and seven years from his
actual removal.

While equitable tolling is available, in this case it is

unwarranted. See Lugo-Resendez v. Lynch, 831 F.3d 337, 344-45 (5th Cir.
2016).
Finally, we lack jurisdiction to review the decision not to reopen removal
proceedings sua sponte. Because an IJ or the BIA has complete discretion in
this regard, we have no legal standard by which to judge the decision. See
Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 & n.6 (5th Cir. 2017).
The petition for review is DENIED.

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