Denis Calderon-Minchola v. Attorney General United States of America

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 23-1743 ____________ DENIS SEGUNDO CALDERON-MINCHOLA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A037-919-176) Immigration Judge: Walter Durling ____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 7, 2024 ____________ Before: CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges (Filed: June 10, 2024) ____________ OPINION* CHAGARES, Chief Judge.

Denis Segundo Calderon-Minchola (“Calderon-Minchola”) petitions this Court for review of a Board of Immigration Appeals (“BIA”) order denying a motion to reopen.

For the reasons that follow, we will deny the petition for review.

I.1 Calderon-Minchola, a native and citizen of Peru, was before the BIA in 2006 when it affirmed the Immigration Judge’s (“IJ”) removal order based upon an aggravated felony conviction and concluded he was ineligible for a waiver of inadmissibility.2 He was removed to Peru in 2010. He filed a motion to reopen in May 2021, arguing that his crime should not have been classified as an aggravated felony under Sessions v. Dimaya, 584 U.S. 148, 174–75 (2018), and that this change in the law was an extraordinary circumstance entitling him to equitable tolling of the ninety-day deadline for filing a motion to reopen. The BIA denied the motion. This timely petition for review followed.

II.3 A.

As an initial matter, the Government argues that Calderon-Minchola cannot prevail because he was removed pursuant to a final order that was valid at the time of removal. In Debeato v. Attorney General, 505 F.3d 231, 236 (3d Cir. 2007), we held that a petitioner collaterally challenging a removal must show a miscarriage of justice — that is, he must show that he should not have been removed based on the law as it existed at the time of removal. Id. Calderon-Minchola concedes that he was removed subject to an order that was valid at that time and thus has not demonstrated a miscarriage of justice.

He argues, however, that Debeato does not apply because he is not seeking to collaterally challenge his removal.

We agree. Debeato involved a collateral attack to the underlying removal order that was initiated after the petitioner illegally re-entered the United States and became subject to a reinstated removal order. 505 F.3d at 233–35. Calderon-Minchola did not illegally re-enter the United States and is not subject to a reinstated removal order.

Debeato is therefore inapposite. We therefore will consider Calderon-Michola’s claim that he has a right to pursue his first motion to reopen.

B.

Motions to reopen are disfavored and are granted only under compelling circumstances. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021). We review the BIA’s denial of a motion to reopen for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The decision will be reversed only if it is arbitrary, irrational, or contrary to law. Id. The relevant statute permits one motion to reopen, which must be filed within ninety days of the removal order.4 See 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. § 1003.2(c)(2). This is Calderon-Minchola’s first motion, but it undisputedly was filed outside of the ninety-day window. The motion may, however, be timely if it is subject to equitable tolling.5 See Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011) (“The time limit for filing a motion to reopen is subject to equitable tolling, and perhaps the numerical limit is as well.”). Equitable tolling is available if Calderon-Minchola pursued his rights diligently and extraordinary circumstances prevented him from filing sooner.

See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Calderon-Minchola’s reopening claim is premised on a change in both the law and the facts; he claims these changes yield the result that he should no longer be classified as an aggravated felon. His argument proceeds as follows. The Supreme Court decided Dimaya in April 2018, determining that, for aggravated felony purposes, a conviction must include the use of force as an element in order to qualify as a crime of violence.

584 U.S. at 174–75. Our Court concluded shortly thereafter that 18 Pa. C.S. § 2702(a)(1) does not contain the use of force as an element and is therefore not a crime of violence, but § 2702(a)(4), Calderon-Minchola’s statute of conviction, does contain such an element. See United States v. Mayo, 901 F.3d 218, 224 (3d Cir. 2018); United States v. Ramos, 892 F.3d 599, 611–12 (3d Cir. 2018). The Pennsylvania state court corrected Calderon-Minchola’s criminal record three years later, in February 2021. That correction reflected that, instead of being convicted under § 2702(a)(4), he was convicted under § 2702(a)(1), the provision that, under Mayo, does not qualify as a crime of violence.

Calderon-Minchola filed his motion to reopen in May 2021, about three months after the correction of his criminal record. He claims that extraordinary circumstances — that is, the new legal and factual landscape — prevented him from filing his motion to reopen any sooner. He contends that the twelve-year period between 2006 (when the removal order was entered) and 2018 (when Dimaya and Mayo/Ramos were decided) should not count against him because there was no legal basis to file his motion before that.6 Even if we accept that the period we should consider begins in 2018, Calderon- Minchola was required to exercise diligence over the entire period for which he desires tolling. Alzaarir, 639 F.3d at 90. Yet the record contains no evidence that Calderon-

Minchola diligently pursued his rights from 2018 until 2021, when the state court corrected his record of conviction.

In his brief to our Court, Calderon-Minchola now argues that, during that time, he was hindered by the difficulties of finding pro bono representation in the United States and the COVID-19 pandemic. The problem, however, is that he did not present these obstacles to the BIA. Calderon-Minchola did not present evidence to establish that he exercised diligence during the nearly three-year period between the change in case law and the correction of his conviction. The BIA therefore did not abuse its discretion in deciding that equitable tolling was unwarranted. See, e.g., Lona v. Barr, 958 F.3d 1225, 1232 (9th Cir. 2020) (holding that it was not an abuse of discretion to deny reopening where petitioner did not show diligent pursuit of her rights in the years between her removal and the new case on which she relied). Absent equitable tolling, the motion to reopen was untimely.

III.

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