* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 29, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60109

Summary Calendar

RAMON NONATO MEDINA-TORRES

Petitioner,

versus

ALBERTO R. GONZALES, U.S. Attorney General,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A29 490 066

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Ramon Nonato Medina-Torres (Medina) seeks review of an order

of the Board of Immigration Appeals (BIA) that dismissed his appeal

of an Immigration Judge’s (IJ) decision denying his motion to

reopen immigration proceedings. Medina argues that the immigration

proceedings should be reopened because he had reasonable cause for

failing to appear at the immigration hearing. He also argues that

the BIA abused its discretion by dismissing as untimely his motion

to reopen his immigration proceedings based upon his eligibility

for relief.
No. 06-60109

-2-

Medina’s factual argument that he did not receive notice of

the hearing is belied by the record. Rather than directly address

the BIA’s determination that the hearing notice that was served on

his attorney was effective as to Medina pursuant to 8 C.F.R.

§ 292.5, Medina argues that he failed to appear due to counsel’s

ineffectiveness. However, Medina admittedly failed to follow the

procedural requirements necessary to use counsel’s ineffectiveness

as a basis for reopening. See Lara v. Trominski, 216 F.3d 487, 496

(5th Cir. 2000) (citing Matter of Lozada, 19 I. & N. Dec. 637, 639

(BIA 1988)). He thus cannot successfully rely on his counsel’s

actions to support his assertion that his counsel’s performance

constitutes reasonable cause for his failure to attend the hearing.

See id. Therefore, Medina has failed to demonstrate reasonable

cause for his absence at the immigration hearing.

Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455 (5th Cir. 2006).

Similarly, Medina’s argument that his motion should not be

considered time-barred is premised on his counsel’s performance.

As discussed above, Medina admittedly failed to follow the

procedural requirements necessary to use counsel’s ineffectiveness

as a basis for reopening. See Lara, 216 F.3d at 496. He therefore

cannot rely on counsel’s purported ineffectiveness to circumvent

the time-bar. See 8 C.F.R. § 1003.2(c)(2). To the extent that

Medina is arguing that equitable tolling should apply to his case,

even if the doctrine of equitable tolling applied in this instance,

Medina’s conclusional, unsupported arguments do not indicate that
No. 06-60109

-3-

Medina’s case is the rare and exceptional case that warrants

equitable tolling. See, e.g., Fierro v. Cockrell, 294 F.3d 674,

682 (5th Cir. 2002).

The BIA did not abuse its discretion when it denied Medina’s

motion to reopen. Lara, 216 F.3d at 496. Medina’s petition for

review is therefore DENIED.