PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Olen on brief for petitioner.
Virginia L. Gordon, Trial Attorney, Civil Division, U.S.
Department of Justice, Joseph H. Hunt, Assistant Attorney
General, Civil Division, and Leslie McKay, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for
Lynch, Stahl, and Kayatta, Circuit Judges.
Jose Alberto Medina ("Medina"), a native and
citizen of Guatemala, appeals an order of the Board of
Immigration Appeals ("BIA") denying his motion to
reopen his immigration proceedings as untimely. Medina
concedes that the motion, which was filed nearly five years
after the BIA ordered his removal, fell outside the 90-day
limitations period set forth by statute and regulation.
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). However, he asks this court to find that
the BIA abused its discretion in rejecting his equitable
tolling argument which was meant to render his motion timely.
For the following reasons, we deny the petition.
Factual and Procedural Background
entered the United States near San Ysidro, California, on
February 5, 1993. In the summer of 1993, he filed an
application for asylum with the Immigration and
Naturalization Service ("INS").
23, 2007,  INS began removal proceedings against
Medina. In his written pleadings, Medina stated that he was
seeking asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"). In the
alternative, he sought voluntary departure. He appeared with
his first counsel, Lidia Sanchez ("Sanchez"),
before an Immigration Judge ("IJ") at a hearing on
October 10, 2007. At the hearing, counsel stated that Medina
sought asylum and withholding of removal, and in the
alternative, cancellation of removal, but expressly disavowed
any claim for relief under the CAT. The IJ then continued the
hearing to July 7, 2008.
of multiple continuances, the hearing did not resume until
June 16, 2011. On that date, Sanchez represented that Medina
conceded removability but still sought cancellation of
removal or, in the alternative, voluntary departure. Counsel
further stated that Medina wished to withdraw his
applications for asylum and withholding of removal. The IJ
asked counsel to affirm that Medina understood that his
withdrawal of those applications would be with prejudice, and
she affirmed that he did so understand. Thereafter, Medina
provided oral testimony, the content of which is not relevant
for resolving this appeal. No other witnesses testified at
October 6, 2011, the IJ denied Medina's application for
cancellation of removal but granted a 60-day voluntary
departure period. In short, the IJ found that Medina had
failed to corroborate his credible testimony and failed to
demonstrate that his removal would cause "exceptional
and extremely unusual hardship," as required to obtain
cancellation of removal, for him and his family, including
two daughters who were U.S. citizens.
November 4, 2011, with the assistance of a new attorney,
Medina filed a notice of appeal with the BIA. In a brief
dated March 7, 2012, Medina raised several claims, arguing
that he was unprepared for his prior hearing, that the IJ
failed to provide him an opportunity to show that
corroborating evidence could not be reasonably obtained, and
that his first counsel's decision to withdraw his asylum
claim was "suspect."
dismissed the appeal on October 23, 2012, finding that Medina
failed to meet his burden of "demonstrat[ing]
eligibility for cancellation of removal." Because the
60-day period for voluntary departure provided by the IJ had
passed, the BIA ordered Medina removed from the United
States. Despite the removal order, however, it appears that
Medina neither left the United States nor sought judicial
review of the removal order.
August 21, 2017, with the assistance of his third (and
current) counsel, Medina filed a motion to reopen his removal
proceedings with the BIA. In his brief, he alleged that
Sanchez rendered ineffective assistance when she withdrew his
applications for asylum, withholding of removal, and
protection under the CAT. He theorized that this was because
she had been unprepared to "prosecute" his claims.
He further represented that he had complied with the
requirements of Matter of Lozada, 19 I&N Dec.
637 (BIA 1988) for filing a motion to motion to
reopen. On that basis, Medina sought to reopen his
removal proceedings, or ...