* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 11, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-61152

Summary Calendar

_______________________

BORIS O. MEDINA-HERRERA,

Petitioner,

versus

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals

BIA No. A29 331 428

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Boris O. Medina-Herrera brings this petition for review,

challenging the Board of Immigration Appeals’s (“BIA’s”) dismissal

of his appeal from an immigration judge’s February 23, 2004, order

denying reopening and reconsideration. Because we conclude that

the BIA did not engage in impermissible fact finding, and that

Medina-Herrera failed to exercise due diligence in preserving his

rights, his petition is DENIED

.

BACKGROUND2 Medina-Herrera is a native and citizen of Guatemala who

entered the United States as a nonimmigrant with permission to

remain until April 5, 1990. He did not depart as required, and an

immigration judge ultimately ordered him d e ported following a

hearing conducted in absentia on October 30, 1990.

On September 11, 1998, Medina-Herrera filed a motion to

reopen pursuant to § 203 of the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”). On December 17, 1999, an immigration judge denied Medina-Herrera’s motion.

On February 5, 2004, Medina-Herrera again moved to have

his case reopened and reconsidered. He argued that he had received

ineffective assistance of counsel in preparing his application for

NACARA relief, and that as a result, the statute of limitations to

f ile a motion to reopen should have been equitably tolled. The

immigration judge held that ineffective assistance of counsel did

not provide a basis for equitable tolling, and denied MedinaHerrera’s motion as untimely on February 23, 2004. Medina-Herrera

appealed to the BIA.

The BIA then dismissed Medina-Herrera’s appeal on

November 18, 2004, holding that Medina-Herrera had failed to

establish that he was entitled to equitable tolling. The BIA

concluded that even if his counsel rendered ineffective assistance,

Medina- Herrera had not exercised due diligence in seeking

reconsideration of the immi g ration judge’s decision. Medina-3

Herrera filed a timely petition for review, and this court has

jurisdiction.

DISCUSSION

On a petition for review of a BIA decision, we review the

BIA’s rulings of law de novo. L opez-Gomez v. Ashcroft , 263 F.3d

442, 444 (5th Cir. 2001). We review the BIA’s findings of fact for

substantial evidence. T esfamichael v. Gonzales

, 411 F.3d 169, 175

(5th Cir. 2005).

Medina-Herrera argues that the BIA violated its own

regulations in determining that he failed to exercise due diligence

in seeking reconsideration. On an appeal from the decision of an

immigration judge, the BIA may review “questions of law,

discretion, and judgment a nd all other issues in appeals from

decisions of immigration judges de novo.” 8 C.F.R.

§ 1003.1(d)(3)(ii ). However, 8 C.F.R. § 1003.1(d)(3)(iv) states

that the BIA “will not engage in factfi nding in the course of

deciding appeals.” Medina-Herrera claims that the BIA engaged in

improper factfi nding in making its determination that he did not

exercise due diligence over his claim. Respondent claims that such

a determination was a conclusion of law.

As a general matter, courts have treated the determination whether a party has exercised due diligence for the purposes

of equitable tolling as a finding of fact. S ee Migis v. Pearle

Vision, Inc.

, 135 F.3d 1041, 1045 (5th Cir. 1998)(discussing4

r easonable diligence in the context of a Title VII claim).

However, in certain limited circumstances, other cir cuit courts

have recognized that the issue of whether a party exercised due

diligence may be a conclusion of law. S ee, e.g.

, Borges v.

Gonzales

, 402 F.3d 398, 407 (3d Cir. 2005) (due diligence found as

a matter of law where facts were undisputed and record permitted

only one conclusion); Former Employees of Sonoco Prods. Co. v.

Chao

, 372 F.3d 1291, 1295 (Fed. Cir. 2004)(same); Iavorski v. INS

,

232 F.2d 124, 134 (2d Cir. 2000) (holding in first instance that an

alien seeking to reopen his case failed to exercise due diligence

and was not entitled to e quitable tolling “as a matter of law”

where facts were undisputed). We agree with the reasoning of the

aforementioned cases and conclude that where the facts on the

record are undisputed, and the result is inarguable, the BIA may

determine a s a matter of law that a party failed to exercise due

diligence.

Even accepting Medina-Herrera’s claims of ineffective

counsel as true, there is no disputing that he took more than four

years to bring a motion to reopen his case. In a formal bar

complai nt he brought against his former counsel, Medina-Herrera

acknowledged that it “seemed odd” that he had not received

communication from his attorney in years. Still, Medina-Herrera

failed to take any action on his case. These undisputed facts lead

only to the conclusion that Medina-Herrera failed to exercise due

diligence; the BIA made a permissible legal det ermination within5

the scope of its authority in dismissing Medina-Herrera’s appeal.

We agree with the Board’s holding, and Me dina-Herrera’s petition

for review is therefore DENIED

.