UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ KATHERINE JOHA NA LEON-MOLINA; MAKAYLA CALDERON-LEON, Petitioners,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 24-9504 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BALDOCK , and FEDERICO , Circuit Judges.

________________ _________________ Petitioners Katherine Johana Leon- Molina and her daughter Makayla Calderon-Leon filed applicati ons for asylum, withholding of removal, and protection under the Convention Against To rture (“CAT”). An immigr ation judge (“IJ”) denied the applications. The Bureau of Immigr ation Appeals (“BIA”) dismissed Petitioners’ appeal after they failed to file a brief, then denied their subsequent motion to

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 3, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 12 reconsider and accept a late-filed brief. Petitioners now seek review of the denial of the motion to reconsider. Exercising ju risdiction under 8 U.S. C. § 1252, we deny their petition. I. Background Petitioners are citizens of El Salvador who entered the United States in May 2021. The Department of Homeland Secur ity initiated removal proceedings against them in August 2021. They conceded rem ovability and filed applications for asylum, withholding of removal, a nd CAT protection, basing thei r claims on threats made by an El Salvadoran gang against Petitioners’ husband and father. The IJ denied the applications in a decision issued March 10, 2022, and Petitioners timely appealed to th e BIA. In their notice of appeal, Petitioners asserted the IJ erred in concluding th ey were ineligible for asylum, withholding of removal, and CAT protection—but they did not address the IJ’s specific fi ndings. Instead, the notice indicated Petitioners would file a se parate written brief. The BIA issued a briefing schedule setting the deadline for Petitioners’ brief on August 15, 2023. Petitioners, however, did not file a brief. Three months after th e deadline, the BIA dismissed the appeal under 8 C.F. R. § 1003.1(d)(2)(i)(A) & (E). Petitioners then filed a motion asking th e Board to accept a late-filed appeal brief. The motion asserted that Petitioners’ counsel never received a hard copy of the briefing schedule. The BIA construed the mo tion as one to reconsider, reinstate the appeal, and accept the late-fil ed brief submitted with the motion. It denied the motion, noting that it sent the briefing schedule to Petiti oners’ counsel via email and Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 23 the email had not been returned as undeliv erable. The BIA therefore concluded it had afforded Petitioners an opp ortunity to file a brief a nd had not deprived them of due process. This petition for review followed.
II. Discussion Ms. Leon-Molina and her daughter petition this court for review of the BIA’s denial of their motion to reconsider. We have jurisdiction to do so. See Mata v. Lynch , 576 U.S. 143, 147 (2015); Infanzon v. Ashcroft , 386 F.3d 1359, 1362 (10th Cir. 2004). We review for an abuse of discretion. Rodas-Orellana v. Holder , 780 F.3d 982, 990 (10th Cir. 2015); 8 C.F.R. § 1003.2(a). Thus, we will reverse the BIA only if it “provides no rational e xplanation, inexplicably departs from established policies, is de void of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales , 430 F.3d 1281, 1283 (10th Cir. 2005) (quotations omitted). Petitioners do not argue the BIA abused its discretion in denying their motion to reconsider. Indeed, Petitioners’ moti on did not even argue the BIA erred in summarily dismissing their appeal. Inst ead, they requested the BIA to accept a late-filed appeal brief because Petitioners ’ counsel had not recei ved a hard copy of the briefing schedule. Even accepting coun sel’s representation, the BIA denied the motion because the BIA’s electronic record s showed it emailed the briefing schedule to Petitioners’ counsel on a date certain and the email had not been returned as undeliverable. This explanation was rati onal and therefore well within the BIA’s discretion. Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 34 Petitioners also argue the BIA should have accepted their late-filed appeal brief under the doctrine of equitable tolling. See In re Morales-Morales , 28 I&N Dec. 714, 717 (BIA 2023) (adopting e quitable tolling rule set forth in Holland v. Florida , 560 U.S. 631, 649 (2010)). The government argues Petitioners did not invoke the doctrine in their motion to r econsider, and therefore the argument is unexhausted. Mahamat , 430 F.3d at 1283 (“The issue of equitable tolling must be exhausted through the BIA in or der for this court to reach this issue. ”). But even if Petitioners had exhausted the issue, they c oncede equitable tolling is subject to an abuse of discretion standard. See Berdiev v. Garland , 13 F.4th 1125, 1129 (10th Cir. 2021). They do not argue the BIA abused its discretion, and we discern no such abuse of discretion. Finally, Petitioners attempt to challenge the merits of the underlying decision, arguing the IJ erred in holding Petitioners did not establish past persecution or a well-founded fear of persecution on account of a protected ground. But they are procedurally barred from ra ising these arguments. In Galvez Piñeda v. Gonzales , 427 F.3d 833 (10th Cir. 2005), the pe titioners failed to file an a ppeal brief, leading to the BIA’s summary dismissal of their appeal. Id. at 837. In their petition to this court, the petitioners sought to challenge the IJ ’s underlying deci sion on the merits. Id. We rejected the attempt, holding that “we will not permit th e petitioner[s] to circumvent proper procedural requireme nts of the BIA by presenti ng contentions that were procedurally barred by the [BIA].” Id. Petitioners likewise ca nnot circumvent the BIA’s procedural requir ements in this case. Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 45 III. Conclusion We uphold the BIA’s denial of Petitioners’ motion to reconsider and deny the petition.

Entered for the Court
Bobby R. Baldock Circuit Judge Appellate Case: 24-9504 Document: 010111104047 Date Filed: 09/03/2024 Page: 5