IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60064

Summary Calendar

BENITO BARAJAS-FLORES,

Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A026 556 982

Before REAVLEY, OWEN, and ELROD, Circuit Judges.

PER CURIAM:*

Benito Barajas-Flores, a Mexican citizen, became a lawful permanent 

resident in 1982. In 2003, Barajas-Flores was removed from the United States 

because he had been convicted of a controlled substance violation, an 

aggravated felony. Barajas-Flores filed a motion to reopen with the 

Immigration Judge (IJ) in 2014 arguing that under the Supreme Court’s 

decision in Lopez v. Gonzalez, 549 U.S. 47 (2006), which was handed down after 

he was deported, his drug conviction was not an aggravated felony, meaning 

 

* 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

July 6, 2017

Lyle W. Cayce

Clerk

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that he was eligible for cancellation of removal. Moreover, he contended that 

under Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012), also decided after 

his removal, the IJ had jurisdiction to consider whether the 90-day period for 

filing a motion to reopen should be equitably tolled despite that he had already 

departed the United States through deportation. The IJ denied the motion to 

reopen citing the regulatory bar on considering untimely motions to reopen 

filed by aliens who have been removed from the United States. The 

IJ therefore concluded that it lacked jurisdiction to consider the motion. 

Barajas-Flores appealed to the Board of Immigration Appeals (BIA). The BIA 

dismissed the appeal. The BIA determined that the motion was untimely and 

that Barajas-Flores failed to establish that any of the statutory or regulatory 

exceptions applied to the time limitation. The BIA further concluded that 

Barajas-Flores’s departure barred consideration of the motion sua sponte. 

Barajas-Flores filed a timely petition for review from this order. The 

proceedings were stayed pending our decision in Lugo-Resendez v. Lynch, 831 

F.3d 337 (5th Cir. 2016). 

We review the denial of a motion to reopen applying the highly 

deferential abuse-of-discretion standard. Lugo-Resendez, 831 F.3d at 340. The 

BIA abuses its discretion when its decision “is capricious, irrational, utterly 

without foundation in the evidence, based on legally erroneous interpretations 

of statutes or regulations, or based on unexplained departures from 

regulations or established policies. “ Id. (internal quotation marks and citation 

omitted).

A petitioner who “seek[s] to reopen his removal proceedings has two 

options: (1) he can invoke the court’s regulatory power to sua sponte reopen 

proceedings under either 8 C.F.R. § 1003.23(b) or 8 C.F. R. § 1003.2(a); or (2) he 

can invoke his statutory right to reopen proceedings under § 1229a(c)(7).” 

Lugo-Resendez, 831 F.3d at 340-41. Section 1229a(c)(7), provides an alien the 

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right to file one motion to reopen his removal proceedings. See id. at 339. The

motion must be filed within 90 days after the date of entry of the final order of 

removal. See § 1229a(c)(7)(C)(i). We recently held, however, that statutory 

motions to reopen are subject to equitable tolling. Lugo-Resendez, 831 F.3d at 

343-44. If an alien’s motion to reopen is not timely filed, it is deemed a 

regulatory motion because the alien’s only available avenue for relief is to ask 

the IJ or the BIA to invoke its regulatory authority to sua sponte reopen the 

removal proceedings. See id. at 342. 

The Attorney General has promulgated two different “departure bars”—

one that applies to the Immigration Court and one that applies to the BIA—

that prevent aliens who have departed the United States from filing either type 

of motion to reopen. See Toora v. Holder, 603 F.3d 282, 287-88 (5th Cir. 2010) 

(applying § 1003.23(b)(1) concerning IJ reopening); Ovalles v. Holder, 577 F.3d 

288, 296-97 (5th Cir. 2009) (applying § 1003.2(d) concerning BIA reopening). 

We have upheld the application of the departure bar to regulatory motions to 

reopen and invalidated the application of the departure to statutory motions 

to reopen. Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675-76 (5th Cir. 2003), 

330 F.3d at 675-76; Garcia-Carias, 697 F.3d at 264. 

Barajas-Flores contends that the BIA erred in determining that the 

IJ was without jurisdiction to consider the motion to reopen and in 

recharacterizing the motion as a request for regulatory, sua sponte reopening 

rather than a statutory reopening. He asserts that the regulatory bar on 

reopening proceedings after an alien has been deported does not apply where, 

as here, the alien seeks statutory reopening of the proceedings based on a 

change in the law that occurred after the deadline for filing a motion to reopen.

The Government argues that the BIA properly denied Barajas-Flores’s 

motion to reopen as untimely because Barajas-Flores did not file his motion to 

reopen until eleven years after the expiration of the 90-day time limit for 

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motions to reopen. The Government also argues that the BIA properly 

concluded that it lacked the authority to consider Barajas-Flores’s request for 

sua sponte reopening pursuant to the post-departure bar. 

In Lugo-Resendez, Lugo-Resendez filed a motion to reopen his removal 

proceedings subsequent to the Supreme Court’s decision in Lopez, which was 

decided after he was deported in 2003, on the basis that his drug conviction 

was not an aggravated felony, meaning that he was eligible for cancellation of 

removal. 831 F.3d at 339. Lugo-Resendez filed his motion to reopen in 2014 

after he became aware of Lopez and Garcia-Carias. Id. at 339-40. LugoResendez argued that his motion to reopen was a statutory motion to reopen 

because the motion was timely under the principles of equitable tolling. Id. at 

342-43. The Government argued that because the motion was untimely, the 

only relief available was under the BIA’s sua sponte regulatory authority, 

which was precluded by the departure bar. Id. at 342. We found that the IJ 

had skipped a step in the timeliness analysis by failing to analyze whether the 

deadline should be equitably tolled, and as a result, determined there was an 

abuse of discretion. Id. at 343. We did not address whether the petitioner was

entitled to equitable tolling and instead remanded the case because the record 

was insufficiently developed to determine whether the petitioner had met the 

standard and the parties failed to discuss the relevant facts in sufficient detail. 

Id. at 344. As in Lugo-Resendez, the BIA in the instant case skipped a step in 

the timeliness analysis by failing to analyze whether the deadline should be 

equitably tolled. Accordingly, we hold that the BIA abused its discretion in 

failing to address equitable tolling, GRANT the petition for review, and 

REMAND to the BIA for consideration of whether equitable tolling is 

appropriate. See id. at 344-45. 

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