UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KATHERINE JOHANA 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 applications for asylum, withholding of removal, and protection 

under the Convention Against Torture (“CAT”). An immigration judge (“IJ”) denied 

the applications. The Bureau of Immigration Appeals (“BIA”) dismissed Petitioners’ 

appeal after they failed to file a brief, then denied their subsequent motion to 

* After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent, 

except under the doctrines of law 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

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reconsider and accept a late-filed brief. Petitioners now seek review of the denial of 

the motion to reconsider. Exercising jurisdiction 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 Security initiated removal proceedings against 

them in August 2021. They conceded removability and filed applications for asylum, 

withholding of removal, and CAT protection, basing their 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 the BIA. In their notice of appeal, Petitioners asserted 

the IJ erred in concluding they were ineligible for asylum, withholding of removal, 

and CAT protection—but they did not address the IJ’s specific findings. Instead, the 

notice indicated Petitioners would file a separate 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 the deadline, the BIA 

dismissed the appeal under 8 C.F.R. § 1003.1(d)(2)(i)(A) & (E). 

Petitioners then filed a motion asking the 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 motion as one to reconsider, reinstate the 

appeal, and accept the late-filed brief submitted with the motion. It denied the 

motion, noting that it sent the briefing schedule to Petitioners’ counsel via email and 

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the email had not been returned as undeliverable. The BIA therefore concluded it 

had afforded Petitioners an opportunity to file a brief and 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 explanation, inexplicably departs from 

established policies, is devoid 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’ motion did not even argue the BIA erred in 

summarily dismissing their appeal. Instead, they requested the BIA to accept a 

late-filed appeal brief because Petitioners’ counsel had not received a hard copy of 

the briefing schedule. Even accepting counsel’s representation, the BIA denied the 

motion because the BIA’s electronic records 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 rational and therefore well within the BIA’s 

discretion. 

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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 equitable 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 reconsider, and therefore the argument is 

unexhausted. Mahamat, 430 F.3d at 1283 (“The issue of equitable tolling must be 

exhausted through the BIA in order for this court to reach this issue.”). But even if 

Petitioners had exhausted the issue, they concede 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 raising these arguments. In Galvez Piñeda v. Gonzales, 427 

F.3d 833 (10th Cir. 2005), the petitioners failed to file an appeal 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 decision on the merits. Id. We 

rejected the attempt, holding that “we will not permit the petitioner[s] to circumvent 

proper procedural requirements of the BIA by presenting contentions that were 

procedurally barred by the [BIA].” Id. Petitioners likewise cannot circumvent the 

BIA’s procedural requirements in this case. 

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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 

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