Case: 18-60472 Document: 00515074124 Page: 1 Date Filed: 08/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-60472
Fifth Circuit
FILED
Summary Calendar August 13, 2019
Lyle W. Cayce
NATALIA ANDREA GARRO CANO, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A043 746 547
Before WIENER, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Petitioner Natalia Andrea Garro Cano is a native and citizen of Colombia
who was adjudicated inadmissible in 2008 because she committed a crime
involving moral turpitude (CIMT). In 2017, she filed an untimely motion to
reopen her removal proceedings, claiming that her attorney did not investigate
or pursue relief from removal. The BIA concluded that Garro Cano had not
established the due diligence necessary for equitable tolling and denied the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60472 Document: 00515074124 Page: 2 Date Filed: 08/13/2019
No. 18-60472
motion. Garro Cano now petitions for review of the BIA’s decision. She also
raises her substantive claims for relief from removal.
We review an immigration court’s denial of a motion to reopen removal
proceedings for abuse of discretion. Lugo-Resendez v. Lynch, 831 F.3d 337, 340
(5th Cir. 2016). 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.” Id. (internal
quotation marks and citation omitted). Equitable tolling is warranted only if
the litigant establishes “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 344 (internal quotation marks and citation omitted).
Garro Cano asserts that her counsel’s failure to investigate and present
a defense to the CIMT charge and inadmissibility determination constituted
an extraordinary circumstance meriting equitable tolling of the limitations
period. However, she makes no attempt, other than a claim of ignorance of the
error, to explain why she waited seven years to file her motion to reopen or
what other efforts she took during that time to preserve her rights. Therefore,
Garro Cano has not met her burden to demonstrate that equitable tolling
applies, and the BIA’s conclusion that her motion to reopen was untimely was
not an abuse of discretion. See id. at 340, 344.
The petition for review is DENIED.
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