Bouraima v. Gonzales

Fifth Circuit

Bouraima v. Gonzales

192 F. App'x 304

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 2, 2006

Docket05-60793

StatusUnpublished

This text of 192 F. App'x 304 (Bouraima v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bouraima v. Gonzales, 192 F. App'x 304 (5th Cir. 2006).

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Opinion

PER CURIAM: *

In July 2004, Lati Kossi Bouraima, a citizen of Liberia who entered the United States without being admitted or paroled, was found removable and was denied asylum. In May 2005, Bouraima moved the Board of Immigration Appeals to sua sponte reopen and redate its July 2004 order. Bouraima asserted that his previous counsel never received the BIA’s decision and that he only learned of the decision on December 15, 2004.

The BIA denied the motion. The BIA concluded that Bouraima’s motion was untimely and that Bouraima had failed to show due diligence in making his claims against his former counsel and in filing the motion to reopen. The instant petition for review followed. Our review is under a “highly deferential abuse of discretion standard.” See Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir.2005).

Because Bouraima’s motion to reopen was not filed within 90 days of the date of entry of the BIA’s decision, this court lacks jurisdiction over his claims. 8 U.S.C. § 1229a(c)(7)(C)(I); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 & n. 3 (5th Cir.2004). Even were this court to assume that equitable tolling is applicable to motions to reopen INS proceedings, it is warranted only in rare and exceptional circumstances. United States v. English, 400 *305 F.3d 273, 275 (5th Cir.2005); Liu v. Gonzales, 166 Fed.Appx. 159, 160 (5th Cir.2006). It is not warranted where there has not been a “diligent pursuit” of the claim. Oliveira v. Gonzales, 127 Fed.Appx. 720, 723 (5th Cir.2005); Lambert v. United States, 44 F.3d 296, 299 & n. 1 (5th Cir.1995).

Bouraima offers nothing to refute the BIA’s determination that he failed to diligently pursue his claims. Accordingly, he has failed to demonstrate that the BIA abused its discretion in denying his untimely motion to reopen. See Manzano-Garcia, 413 F.3d at 469. The petition for review is therefore DISMISSED. See Liu, 166 FedAppx. at 160.

*

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.

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PER CURIAM: *

In July 2004, Lati Kossi Bouraima, a citizen of Liberia who entered the United States without being admitted or paroled, was found removable and was denied asylum. In May 2005, Bouraima moved the Board of Immigration Appeals to sua sponte reopen and redate its July 2004 order. Bouraima asserted that his previous counsel never received the BIA’s decision and that he only learned of the decision on December 15, 2004.

The BIA denied the motion. The BIA concluded that Bouraima’s motion was untimely and that Bouraima had failed to show due diligence in making his claims against his former counsel and in filing the motion to reopen. The instant petition for review followed. Our review is under a “highly deferential abuse of discretion standard.” See Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir.2005).

Because Bouraima’s motion to reopen was not filed within 90 days of the date of entry of the BIA’s decision, this court lacks jurisdiction over his claims. 8 U.S.C. § 1229a(c)(7)(C)(I); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 & n. 3 (5th Cir.2004). Even were this court to assume that equitable tolling is applicable to motions to reopen INS proceedings, it is warranted only in rare and exceptional circumstances. United States v. English, 400 *305 F.3d 273, 275 (5th Cir.2005); Liu v. Gonzales, 166 Fed.Appx. 159, 160 (5th Cir.2006). It is not warranted where there has not been a “diligent pursuit” of the claim. Oliveira v. Gonzales, 127 Fed.Appx. 720, 723 (5th Cir.2005); Lambert v. United States, 44 F.3d 296, 299 & n. 1 (5th Cir.1995).

Bouraima offers nothing to refute the BIA’s determination that he failed to diligently pursue his claims. Accordingly, he has failed to demonstrate that the BIA abused its discretion in denying his untimely motion to reopen. See Manzano-Garcia, 413 F.3d at 469. The petition for review is therefore DISMISSED. See Liu, 166 FedAppx. at 160.

*

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.

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