Miranda-Cruz v. Garland

Case: 21-60065 Document: 00516614031 Page: 1 Date Filed: 01/18/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 18, 2023 No. 21-60065 Lyle W. Cayce Clerk Harold Eduardo Miranda-Cruz; Damny Ayalila Castro- Amador; Boris Carlo Miranda-Castro, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Appeal for Review of an Order of the Board of Immigration Appeals BIA Nos. A213 292 536; A213 292 537; A213 292 538 Before Higginbotham, Duncan, and Engelhardt, Circuit Judges. Per Curiam:* Petitioners are a family of Nicaraguan citizens who, after being ordered removed from the United States in absentia, subsequently moved to reopen their removal proceedings. The Board of Immigration Appeals (BIA) adopted the Immigration Judge’s (IJ) ruling that Petitioners’ motion was * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-60065 Document: 00516614031 Page: 2 Date Filed: 01/18/2023 No. 21-60065 untimely and not subject to equitable tolling.1 They now petition for our review. We review the BIA’s decision under a “highly deferential abuse-of- discretion standard” and must affirm it “as long as [the decision] is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Flores-Moreno v. Barr, 971 F.3d 541, 544 (5th Cir. 2020) (citation omitted). We review the IJ’s decision to the extent it influenced the BIA’s ruling. Cardona-Franco v. Garland, 35 F.4th 359, 363 (5th Cir. 2022) (citing Qorane v. Barr, 919 F.3d 904, 909 n.1 (5th Cir. 2019)). Petitioners, now joined by the Government,2 argue the BIA and IJ abused their discretion in denying equitable tolling. Having studied the briefs and the record, as well as hearing oral argument, we deny the petition for review. Petitioners first argue that they faced extraordinary circumstances justifying equitable tolling because, after first unlawfully entering the United States in 2019, they were required by then-existing immigration policy to return to Mexico to await their removal hearing. See Biden v. Texas, 142 S. Ct. 2528, 2535 (2022) (discussing “Migrant Protection Protocols”); 8 U.S.C. § 1225(b)(2)(C). We lack jurisdiction to consider this argument because Petitioners failed to exhaust it before the BIA. See Cruz Rodriguez v. Garland, 993 F.3d 340, 345 (5th Cir. 2021) (citing 8 U.S.C. § 1252(d)(1); Roy v. 1 See 8 U.S.C. § 1229a(b)(5)(C)(i), (c)(7)(C)(iii) (in absentia removal order may be rescinded only upon motion to reopen filed within 180 days, provided alien shows failure to appear was due to “exceptional circumstances”); Eneugwu v. Garland, --- F.4th ---, 2022 WL 17351907, at *2–3 (5th Cir. Dec. 1, 2022) (equitable tolling requires an alien to show he was “pursuing his rights diligently” and an “extraordinary circumstance . . . prevented timely filing” (quoting Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016))). 2 The Government previously opposed Petitioners’ motion to reopen before the BIA and the IJ but has now changed its position. 2 Case: 21-60065 Document: 00516614031 Page: 3 Date Filed: 01/18/2023 No. 21-60065 …

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