United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 29, 2006
Charles R. Fulbruge III
Clerk
No. 06-60109
Summary Calendar
RAMON NONATO MEDINA-TORRES
Petitioner,
versus
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A29 490 066
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ramon Nonato Medina-Torres (Medina) seeks review of an order
of the Board of Immigration Appeals (BIA) that dismissed his appeal
of an Immigration Judge’s (IJ) decision denying his motion to
reopen immigration proceedings. Medina argues that the immigration
proceedings should be reopened because he had reasonable cause for
failing to appear at the immigration hearing. He also argues that
the BIA abused its discretion by dismissing as untimely his motion
to reopen his immigration proceedings based upon his eligibility
for relief.
*
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this opinion should not be published and is not precedent except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.
No. 06-60109
-2-
Medina’s factual argument that he did not receive notice of
the hearing is belied by the record. Rather than directly address
the BIA’s determination that the hearing notice that was served on
his attorney was effective as to Medina pursuant to 8 C.F.R.
§ 292.5, Medina argues that he failed to appear due to counsel’s
ineffectiveness. However, Medina admittedly failed to follow the
procedural requirements necessary to use counsel’s ineffectiveness
as a basis for reopening. See Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000) (citing Matter of Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988)). He thus cannot successfully rely on his counsel’s
actions to support his assertion that his counsel’s performance
constitutes reasonable cause for his failure to attend the hearing.
See id. Therefore, Medina has failed to demonstrate reasonable
cause for his absence at the immigration hearing.
Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455 (5th Cir. 2006).
Similarly, Medina’s argument that his motion should not be
considered time-barred is premised on his counsel’s performance.
As discussed above, Medina admittedly failed to follow the
procedural requirements necessary to use counsel’s ineffectiveness
as a basis for reopening. See Lara, 216 F.3d at 496. He therefore
cannot rely on counsel’s purported ineffectiveness to circumvent
the time-bar. See 8 C.F.R. § 1003.2(c)(2). To the extent that
Medina is arguing that equitable tolling should apply to his case,
even if the doctrine of equitable tolling applied in this instance,
Medina’s conclusional, unsupported arguments do not indicate that
No. 06-60109
-3-
Medina’s case is the rare and exceptional case that warrants
equitable tolling. See, e.g., Fierro v. Cockrell, 294 F.3d 674,
682 (5th Cir. 2002).
The BIA did not abuse its discretion when it denied Medina’s
motion to reopen. Lara, 216 F.3d at 496. Medina’s petition for
review is therefore DENIED.