NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-2784 _____________

LUIS ANTONIO ACEVEDO-GUALLPA, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

_____________________________________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency Case No. A026-762-831) _____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 14, 2023

(Filed: October 30, 2023)

Before: PHIPPS, McKEE, RENDELL, Circuit Judges. _________ OPINION* _________

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

Luis Acevedo-Guallpa petitions for review of an order of the Board of

Immigration Appeals (BIA) denying his motion to reconsider. The BIA found that

Acevedo-Guallpa’s motion was untimely and that, even if the Supreme Court’s decision

in Esquivel-Quintana v. Sessions,

(2017), constituted a fundamental change

in law, equitable tolling was unwarranted because Acevedo-Guallpa had not acted

diligently in pursuing his claim. The BIA also found that the exercise of its sua sponte

authority was unwarranted.

We will deny Acevedo-Guallpa’s petition for the reasons set forth below.

I.1

Acevedo-Guallpa is a native and citizen of Ecuador. In 1991, he was admitted to

the United States as a conditional permanent resident, and his status was adjusted to

lawful permanent resident in 1993. In 2002, Acevedo-Guallpa pled guilty to one count of

fourth-degree rape in Delaware arising from a consensual relationship with a 17-year-old

individual when Acevedo-Guallpa was 35 years old. The Government charged him as

removable under

(a)(2)(A)(iii), charging, inter alia, that his conviction

constituted an aggravated felony for sexual abuse of a minor.

(a)(43)(A).

Acevedo-Guallpa argued that his conviction did not render him removable under

the Immigration and Nationality Act (INA). The Immigration Judge denied

Acevedo-Guallpa’s application for relief, determining that the conviction constituted

1 Because we write only for the parties, we will recite only the facts necessary to our decision. 2 sexual abuse of a minor. The BIA affirmed. We dismissed Acevedo-Guallpa’s petition

for review and denied a motion for reconsideration. The Government repatriated

Acevedo-Guallpa to Ecuador in 2004.

On June 8, 2022, Acevedo-Guallpa asked the BIA to reconsider its decision

following the Supreme Court’s opinion in Esquivel-Quintana v. Sessions,

(2017), which Acevedo-Guallpa argued established that his conviction no longer served

as a basis for his removal. Acevedo-Guallpa urged the BIA to equitably toll the 30-day

deadline to file the motion based on the change in law or to reconsider its earlier decision

under the BIA’s sua sponte authority or “to avoid a violation of due process.” AR 28

¶ 40. The BIA denied the motion to reconsider as untimely, determined that equitable

tolling was not appropriate because Acevedo-Guallpa failed to pursue his claim

diligently, and declined to reconsider under its sua sponte authority.

Acevedo-Guallpa then timely filed this petition for review.

II.2

We review the denial of a motion for reconsideration for abuse of discretion and

disturb the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Borges v.

Gonzales,

(3d Cir. 2005) (quoting Guo v. Ashcroft,

(3d Cir. 2004)). We review de novo questions of law, which include the BIA’s

2 The BIA had jurisdiction under 8 C.F.R § 1003.2(a). We have jurisdiction under

(a). Because removal proceedings before the Immigration Judge were completed in York, Pennsylvania, venue is proper in this Court.

(b).

3 application of the equitable tolling standard “to undisputed or established facts.”

Guerrero-Lasprilla v. Barr,

(2020).

We are generally without jurisdiction to review a BIA decision declining to invoke

its sua sponte authority, Sang Goo Park v. Att’y Gen.,

(3d Cir. 2017),

but if the BIA based its decision on an “incorrect legal premise,” we may remand for the

BIA to “exercise its authority against the correct ‘legal background.’” Pllumi v. Att'y

Gen.,

(3d Cir. 2011) (quoting Mahmood v. Holder,

(2d Cir. 2009)).

III.

Acevedo-Guallpa raises three arguments: First, he argues that the BIA abused its

discretion by failing to determine that his state conviction can no longer be considered an

aggravated felony under the INA. Second, he contends that the BIA erred in finding that

equitable tolling of his motion was unwarranted. Third, he argues that the BIA abused its

discretion in failing to address his due process claim. We focus on Acevedo-Guallpa’s

second argument on equitable tolling because it is dispositive.

Acevedo-Guallpa argues that his motion to reconsider is timely because he is

entitled to equitable tolling. Acevedo-Guallpa recognizes that his argument requires us to

make two preliminary holdings: first, that the deadlines for filing a motion to reconsider

with the BIA may be equitably tolled; and second, that tolling is appropriate based on a

change in law. But even if we arrived at those two holdings, Acevedo-Guallpa would not

be entitled to equitable tolling.

4 Generally, a noncitizen may file one motion to reconsider within 30 days of the

date of entry of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(6)(A)–

(B). That limitation supports the “strong public interest” in bringing removal-related

litigation to a close. INS v. Abudu,

(1988). Equitable tolling, “an

extraordinary remedy which should be extended only sparingly,” lies in some tension

with that public interest. Hedges v. United States,

(3d Cir. 2005).

We have not held that motions to reconsider are subject to equitable tolling. But

even if we were to hold so here, Acevedo-Guallpa would not be entitled to relief because

a party seeking equitable tolling must make two showings: “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Holland v. Florida,

(2010) (internal quotation

marks omitted). Acevedo-Guallpa shows neither.

Tracing Acevedo-Guallpa’s argument, we consider the “extraordinary

circumstances” prong first. We have recognized few circumstances that could merit

equitable tolling in the related context of a motion to reopen, but we have not held that a

change in case law may be such an extraordinary circumstance. Acevedo-Guallpa

requests that we hold so now. In his view, the extraordinary circumstance here is the

Supreme Court’s 2017 opinion in Esquivel-Quintana, which held that convictions under

state statutes criminalizing consensual sexual intercourse between two individuals over

the age of 16 do not qualify as sexual abuse of a minor under the INA.

.

Thus, Acevedo-Guallpa argues, his statutory rape conviction cannot be classified as an

aggravated felony, and he was not properly removed in 2004.

5 Acevedo-Guallpa urges us to join our sister courts that have recognized a change

in law may be a basis for equitable tolling. But the cases to which he cites do not

persuade us that we should recognize that basis for equitable tolling here.

Acevedo-Guallpa directs us to Lona v. Barr,

(9th Cir. 2020),

which recognized that a fundamental change in law could warrant equitable tolling. Lona,

like Acevedo-Guallpa, argued that a change in law invalidated the “aggravated felony”

status of her convictions.

. But the Court denied the petition, reasoning that the

alleged change in law merely built on earlier cases, the petitioner had a fair opportunity to

raise the same arguments before the intervening case law, and she showed no

impediments to timely filing a motion.

at 1231–32.

Acevedo-Guallpa next looks to Lugo-Resendez v. Lynch,

(5th Cir.

2016), in which the removed petitioner raised two changes in law as bases for equitable

tolling: a substantive change in law announced in a 2006 Supreme Court opinion

invalidating the “aggravated felony” basis for his removal,

, and a procedural

change in law announced in a 2012 Fifth Circuit Court of Appeals decision invalidating

the BIA’s long-held ban on motions to reopen or reconsider made by noncitizens

following departure from the United States.

at 339–340 (citing Garcia-Carias v.

Holder,

(5th Cir. 2012)). The Lugo-Resendez Court remanded for further

consideration as to whether equitable tolling was warranted,

at 343–44, and the BIA

concluded that the two intervening cases constituted extraordinary circumstances beyond

the petitioner’s control that prevented him from earlier filing a motion to reopen. In re

Lugo-Resendez, No. AXXX XX0 500,

, at *3 (BIA Dec. 28, 2017).

6 These cases do not persuade us that “extraordinary circumstance[s] stood in

[Acevedo-Guallpa’s] way and prevented timely filing.” Holland,

(internal citations omitted). Acevedo-Guallpa bases his change-in-law argument only on

the substantive change announced in Esquivel-Quintana. He faced no impediments in

making the argument that ultimately prevailed in Esquivel-Quintana—indeed, he made

that very argument in immigration proceedings prior to his removal. Further, given that

we invalidated the post-departure bar at issue in Lugo-Resendez over a decade ago,

Acevedo-Guallpa does not argue that a procedural barrier prevented an earlier filing of

his motion to reconsider. See Prestol Espinal v. Att’y Gen.,

(3d. Cir.

2011). Finding no extraordinary circumstances present, we need not accept

Acevedo-Guallpa’s invitation to hold that a change in law can form a basis for equitable

tolling here.

Even were we to hold that a change in law may constitute an extraordinary

circumstance, Acevedo-Guallpa is not entitled to equitable tolling because he did not

pursue his rights diligently “over the entire [18-year] period for which tolling is desired.”

Alzaarir v. Att’y Gen.,

(3d Cir. 2011). Acevedo-Guallpa admits that,

believing he had no way to legally return to the United States, he did not actively follow

changes in U.S. immigration law for the years between his 2004 removal and the

Supreme Court’s 2017 decision in Esquivel-Quintana. Nor has he shown renewed

diligence between 2017 and 2021, the year in which his brother offered to research the

possibility of Acevedo-Guallpa’s legal return. And even after counsel informed

Acevedo-Guallpa of the change in law, Acevedo-Guallpa waited three more months

7 before agreeing to pursue his motion to reconsider. Cf. In re Lugo-Resendez,

, at *2 (noting that petitioner filed motion to reopen within the statutory window

after learning of the change in law). The facts here do not connote a “diligent pursuit of

. . . rights” since removal. Lona,

.

We perceive no error in the BIA’s application of the equitable tolling standard to

the facts, and, given Acevedo-Guallpa’s failure to diligently pursue his claim, the BIA’s

denial of the motion to reconsider was not “arbitrary, irrational, or contrary to law.”

Alzaarir,

. Thus, we find no abuse of discretion.3

Acevedo-Guallpa also urges us to find that the BIA abused its discretion in failing

to address his claim that, by declining to deem his motion to reconsider timely, his due

process rights were violated. The argument essentially asks that we review the BIA’s

decision declining to sua sponte reconsider this matter, which we generally lack

jurisdiction to do, and “merely recasts his abuse-of-discretion argument in constitutional

terms.” Khan v. Att’y Gen.,

(3d Cir. 2006).

These allegations cannot raise a colorable constitutional claim, see Sang Goo

Park,

n.51, because Acevedo-Guallpa received a meaningful opportunity

to be heard prior to his removal, and following his removal, briefed his argument for

reconsideration and received a ruling from the BIA. The BIA’s adverse ruling on

Acevedo-Guallpa’s equitable tolling argument does not equate to a due process violation,

3 The BIA did not abuse its discretion in not reaching the merits of Acevedo-Guallpa’s claim because it is “not required to make findings on issues the decision of which is unnecessary to the results [it] reach[es].” INS v. Bagamasbad,

, 25–26 (1976). 8 because he has no “protected liberty interest in the discretionary relief of a motion to

reconsider,” Cruz-Moyaho v. Holder,

(7th Cir. 2012), “especially

given that the 30-day deadline he challenges is compelled by statute.” Gonzalez

Hernandez v. Garland,

(5th Cir. 2021). Therefore, Acevedo-Guallpa’s

“artful [constitutional] labeling will not confer us with jurisdiction” to hear this claim.

Jarbough v. Att’y Gen.,

(3d Cir. 2007).

IV.

For the foregoing reasons, we will deny the petition for review.

9