NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-2476 ____________

EDWIN DEJESUS MEJIA-MORALES, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________

On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1: A078-282-289) Immigration Judge: David Cheng ____________

Submitted under Third Circuit LAR 34.1(a) March 3, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

(Filed: March 6, 2020)

____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Edwin De Jesus Mejia-Morales petitions for review of an order of the Board of

Immigration Appeals affirming an Immigration Judge’s order denying his motion to

reopen his removal proceedings. We will deny the petition for review.

I

A native of Guatemala, Mejia-Morales entered the United States without

admission or parole on August 31, 2005. The next day, the Department of Homeland

Security served him with a Notice to Appear, charging him as removable under

(a)(6)(A)(i). The Notice indicated that the initial hearing would be “on a date to be

set at a time to be set.” AR 487. Meija-Morales received notice of the date and time of his

hearing, and later applied for asylum, withholding of removal, and protection under the

Convention Against Torture. When Mejia-Morales did not appear at a merits hearing

scheduled for February 4, 2015, the IJ ordered him removed in absentia. Mejia-Morales

later averred that he arrived at court just after the IJ ordered him removed.

On November 2, 2018—1,368 days after the IJ ordered removal—Mejia-Morales

filed a motion to reopen under

(b)(1). The IJ denied that motion as

untimely, so Mejia-Morales appealed. After the BIA dismissed the appeal, Mejia-Morales

filed a timely petition for review in this Court.

2 II 1

Mejia-Morales raises two arguments in this appeal, one jurisdictional and one on

the merits. His jurisdictional challenge—that his Notice to Appear was defective—is

foreclosed by our opinion in Nkomo v. Att’y Gen.,

(3d Cir. 2019). His

merits challenge—that the agency should have heard his untimely motion to reopen—is

unpersuasive for the reasons that follow.

A motion to reopen under

typically must be filed within 90

days of the final order of removal.

(b)(1). But in this case, Mejia-

Morales’s challenge to the order of removal entered in absentia is governed by 8 U.S.C.

§ 1229a(b)(5)(C)(i), which provides that the order may be rescinded only on “a motion to

reopen filed within 180 days after the date of the order [] if [he] demonstrates that the

failure to appear was because of exceptional circumstances.” Id. That 180-day period is

subject to equitable tolling, however. Borges v. Gonzales,

(3d Cir.

2005).

Mejia-Morales claims equitable tolling saves his untimely motion because his

prior counsel was ineffective. See Mahmood v. Gonzales,

(3d Cir.

2005). Yet even if counsel provided ineffective assistance, Mejia-Morales must

demonstrate that he acted diligently “over the entire period for which tolling is desired.”

Alzaarir v. Att’y Gen.,

(3d Cir. 2011). The BIA held that Mejia-Morales

was not diligent when he sought to reopen his case more than three years after he was

1 We have jurisdiction to review the BIA’s order under

(a).

3 ordered removed. In so holding, the BIA did not abuse its discretion because its decision

was not arbitrary, irrational, or contrary to law. See Sevoian v. Ashcroft,

(3d Cir. 2002); Tipu v. INS,

(3d Cir. 1994).

The IJ acknowledged that Mejia-Morales provided evidence of ineffective

assistance of counsel, but determined that he failed to explain his lack of diligence in

waiting to file the motion. Likewise, the BIA concluded: “[a]t the latest, [Mejia-Morales]

should have filed his motion to reopen on August 3, 2015, 180 days after the entry of the

removal order.” AR 3. Yet Mejia-Morales did not file the motion until November 2,

2018. It’s true he provided an affidavit to the BIA stating that he “called [his attorney] for

updates throughout the years and [was told] to just wait,” and after being detained by ICE

in October 2018, “it was brought to [his] attention that . . . no motion to reopen was ever

filed.” AR 43 ¶¶ 3, 4; AR 131. But as the BIA observed, Mejia-Morales provided no

details about those calls or about any other contacts with his attorney relative to filing a

motion to reopen. Accordingly, it found a lack of due diligence during the lengthy delay

from expiration of the 180-day period after the order of removal in absentia (August 3,

2015) until November 2, 2018. So equitable tolling was unwarranted.

Mejia-Morales argues that our opinion in Borges supports equitable tolling in his

case. But unlike this case, in Borges the petitioner was diligent and there was evidence of

fraud that dissuaded him from pursuing relief. 402 F.3d at 405–07. Mejia-Morales only

made some calls and waited until he was detained more than three years later before

filing his motion.

4 In sum, we perceive no abuse of discretion in the BIA’s determination that Mejia-

Morales’s wait-and-see approach failed to demonstrate the requisite diligence necessary

to rescue him from the 1,188-day delay in filing his motion to reopen. So we will deny

his petition for review.

5