Case: 14-60785 Document: 00513863113 Page: 1 Date Filed: 02/03/2017
CORRECTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60785 FILED
Summary Calendar February 3, 2017
Lyle W. Cayce
Clerk
ADMILSON SILVERIO-DA SILVA,
Petitioner
v.
DANA BOENTE, ACTING U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 358 727
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Admilson Silverio-Da Silva, a native and citizen of Brazil, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the order of the immigration judge (IJ) denying his 2013
motion to reopen his 2004 removal proceedings. We review the BIA’s denial of
Silverio-Da Silva’s motion to reopen under a “highly deferential abuse-of-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60785
discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The
BIA “abuses its discretion when it issues a decision that is capricious,
irrational, utterly without foundation in the evidence, based on legally
erroneous interpretations of statutes or regulations, or based on unexplained
departures from regulations or established policies.” Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). We review the BIA’s order, but
we also consider the IJ’s underlying decision insofar as it influenced the BIA’s
determination. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
Among the arguments raised in his motion to reopen, Silverio-Da Silva
contended that he was entitled to equitable tolling of the 90-day deadline set
forth in 8 U.S.C. § 1229a(c)(7)(C)(i). Citing our decision in Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 220 (5th Cir. 2008), the IJ held that equitable tolling
was not available to toll the § 1229a(c)(7)(C)(i) deadline and that Silverio-Da
Silva’s request for such tolling was properly construed as a request for the IJ
to exercise his sua sponte authority to reopen under 8 C.F.R. 1003.23(b).
Alternatively, the IJ looked to this court’s equitable tolling jurisprudence and
held that such tolling, even if available, was not warranted because (1) a
Portuguese-language stipulation signed by Silverio-Da Silva undermined his
due process argument, and (2) Silverio-Da Silva had waited over nine years to
file his motion and therefore had not diligently pursued his rights. The IJ did
not consider the merits of Silverio-Da Silva’s motion to reopen apart from this
equitable tolling analysis.
On appeal, the BIA concurred with the IJ that Silverio-Da Silva’s motion
was untimely under § 1229a(c)(7)(C)(i) and that equitable tolling was not
available pursuant to Ramos-Bonilla. The BIA also cited with approval the
portion of the IJ’s opinion that alternatively held that equitable tolling was not
warranted even if available. However, the BIA characterized the IJ’s
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No. 14-60785
alternative holding thusly: “[E]ven if [the IJ] had jurisdiction over the motion
to reopen, the respondent did not establish any exceptional circumstances to
warrant reopening.” (emphasis added).
In the time since the BIA’s decision, the Supreme Court has held that
requests for equitable tolling of the § 1229a(c)(7)(C)(i) deadline should no
longer be construed as provided in Ramos-Bonilla. Mata v. Lynch, 135 S. Ct.
2150, 2155-56 (2015). Further, in the wake of Mata, this court has held that
equitable tolling is available to toll the § 1229a(c)(7)(C)(i) deadline. Lugo-
Resendez v. Lynch, 831 F.3d 337, 343-45 (5th Cir. 2016) (instructing the BIA
to apply on remand the same equitable tolling standards used by this court in
other contexts). Remand may be appropriate when the BIA’s decision has
become unsustainable in light of an intervening change in binding precedent.
See Kane v. Holder, 581 F.3d 231, 242 & n.42 (5th Cir. 2009) (citing Arce-Vences
v. Mukasey, 512 F.3d 167, 172-73 (5th Cir. 2007)).
We note that, as stated above, the BIA cited with approval the portion of
the IJ’s decision stating that equitable tolling was not warranted even if
available; however, the BIA characterized this portion of the IJ’s decision as
supporting the conclusion that reopening, as opposed to equitable tolling, was
not warranted. We, therefore, cannot discern whether the BIA intended to
adopt the IJ’s alternative equitable tolling holding, to rule in the alternative
on the merits of Silverio-Da Silva’s motion, or both.
Accordingly, before we reach other, more complex issues presented in
Silverio-Da Silva’s petition, judicial economy dictates that we REMAND this
case to the BIA for the limited purpose of reconsidering Silverio-Da Silva’s
equitable tolling claim in light of Mata and Lugo-Resendez.
REMANDED FOR LIMITED PURPOSE.
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