Case: 20-60021 Document: 00515979727 Page: 1 Date Filed: 08/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 16, 2021
No. 20-60021
Lyle W. Cayce
Summary Calendar
Clerk
Aristeo Sanchez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 096 457
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Aristeo Sanchez, a native and citizen of Mexico, petitions for review
of an order by the Board of Immigration Appeals (BIA) denying his motion
to reopen. He argues that (1) his motion to reopen is timely and not
numerically barred because he is entitled to equitable tolling; (2) the BIA
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60021 Document: 00515979727 Page: 2 Date Filed: 08/16/2021
No. 20-60021
erred in failing to address his argument that he did not receive proper notice
of his proceedings; (3) the immigration judge lacked jurisdiction to order him
removed; (4) the BIA erred in failing to consider whether he was eligible for
cancellation of removal; (5) the BIA erred in not sua sponte reopening his
proceedings; and (6) the BIA erroneously ignored his argument that his due
process rights were violated. Sanchez also has filed a motion to remand,
arguing that, in light of the Supreme Court’s decision in Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021), he is newly eligible for cancellation of
removal.
We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir.
2017).
The BIA did not abuse its discretion in determining that Sanchez
received proper notice of his master hearing because a notice to appear is
sufficient to commence immigration proceedings in the absence of a specific
time and date of an initial hearing.1 See Pierre-Paul v. Barr, 930 F.3d 684, 689-
91 (5th Cir. 2019), abrogated in part on other grounds by Niz-Chavez, 141 S. Ct.
at 1479-80; see also Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir.
2021).
Further, the BIA did not abuse its discretion in determining that
Sanchez was not entitled to equitable tolling. An alien is entitled to equitable
tolling if he shows “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Mejia v. Barr, 952 F.3d 255, 259 (5th Cir. 2020) (quoting Lugo-
Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016)). Although Sanchez
1
Despite Sanchez’s assertions to the contrary, the BIA explicitly rejected this
argument.
2
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No. 20-60021
argues that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018), constitutes an extraordinary circumstance warranting equitable
tolling, his reliance is unavailing because, as discussed above, he received
proper notice of his hearing. See Pierre-Paul, 930 F.3d at 689-91. Because the
BIA did not abuse its discretion in determining that the motion to reopen was
untimely and numerically barred, we need not address Sanchez’s arguments
that the BIA erred in failing to address his eligibility for cancellation of
removal and that he is statutorily eligible for such relief. See Flores-Moreno v.
Barr, 971 F.3d 541, 545 (5th Cir. 2020), cert. denied, 141 S. Ct. 1238 (2021).
We lack jurisdiction to review the portion of Sanchez’s petition
seeking review of the BIA’s decision not to exercise its authority to sua
sponte reopen the case. See Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir.
2019).
Finally, because Sanchez received proper notice of his removal
hearing and he actually attended the hearing, he is unable to demonstrate that
his due process rights were violated when the notice to appear failed to
specify the time and date of an initial hearing. See Pierre-Paul, 930 F.3d at
689-91.
The petition for review is DENIED IN PART and DISMISSED
IN PART. The motion to remand is also DENIED.
3