UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSE SUAREZ-SANCHEZ, 

 Petitioner, 

v. 

LORETTA E. LYNCH, United States 

Attorney General, 

 Respondent. 

Nos. 14-9557, 14-9615, 15-9518 

(Petitions for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges. 

_________________________________ 

Jose Suarez-Sanchez seeks review of three orders by the Bureau of 

Immigration Appeals (BIA) denying his motions to reopen removal proceedings.1

 

We deny his petitions for review. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered 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. 

1

 Mr. Suarez-Sanchez filed three motions to reopen and a separate petition to 

review each order denying them. This generated three separate cases on appeal, 

which we have consolidated for procedural purposes. 

FILED 

United States Court of Appeals

Tenth Circuit 

February 8, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

I. Background 

Mr. Suarez-Sanchez is a native and citizen of Mexico who came to the United 

States illegally and became the subject of removal proceedings in 2009. He conceded 

removability, but, with the help of an attorney, applied for cancellation of removal on 

grounds that it would cause exceptional hardship to two of his children. See

8 U.S.C. § 1229b(b). Alternatively, he requested permission to depart voluntarily. 

See 8 U.S.C. § 1229c. Following a hearing, an Immigration Judge (IJ) denied 

Mr. Suarez-Sanchez’s application for cancellation of removal, but granted his request 

for voluntary departure. The BIA dismissed his appeal. 

Mr. Suarez-Sanchez did not leave the country as directed. Instead, he hired a 

new attorney who filed a motion to reopen removal proceedings after the voluntary 

departure period had expired. The BIA denied the motion. Mr. Suarez-Sanchez filed 

two subsequent motions to reopen, which the BIA also denied. 

As noted above, Mr. Suarez-Sanchez filed a petition to review each order 

denying his motions to reopen. 

II. Relevant Law 

An alien may file one motion to reopen removal proceedings within 90 days 

after the final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). 

We review the denial of a motion to reopen for abuse of discretion. See

Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its 

discretion when its decision provides no rational explanation, inexplicably departs 
3 

from established policies, is devoid of any reasoning, or contains only summary or 

conclusory statements.” Id. (internal quotation marks and citation omitted). 

III. First Motion to Reopen 

The BIA denied Mr. Suarez-Sanchez’s first motion to reopen because he failed 

to leave the country within the 60-day voluntary departure period, making him 

ineligible for cancellation of removal, see 8 U.S.C. § 1229c(b)(2), (d)(1)(B), which is 

the relief he sought in the first place. Mr. Suarez-Sanchez did not file a motion to 

reconsider, see 8 U.S.C. § 1229a(c)(6) (allowing an alien to file a motion to 

reconsider within 30 days after a final order), or challenge the BIA’s ruling in his 

subsequent motions to reopen. See Mena-Flores v. Holder, 776 F.3d 1152, 1161 

(10th Cir. 2015); Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007). Instead, 

he filed a petition for review in this court, where he argues for the first time that the 

BIA violated his statutory and due process right to file a motion to reopen within 90 

days. But Mr. Suarez-Sanchez failed to exhaust this argument, and thereby deprived 

us of jurisdiction to consider it.2

 See 8 U.S.C. § 1252(d)(1) (providing, “[a] court 

may review a final order of removal only if . . . the alien has exhausted all 

administrative remedies available”). 

 2

 The exhaustion requirement does not apply to constitutional claims the BIA 

lacks authority to resolve. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 

2008). But although Mr. Suarez-Sanchez frames his argument in terms of 

constitutional due process, it is a claim of procedural error that the BIA could have 

remedied. See id; Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir. 1999) (per 

curiam). 
4 

IV. Second Motion to Reopen 

In his second motion to reopen, Mr. Suarez-Sanchez requested a new hearing 

on grounds that his former attorney was ineffective. The BIA denied the motion 

because it was filed more than 90 days after the final order of removal, making it 

untimely. See 8 C.F.R. § 1003.2(c)(2). Mr. Suarez-Sanchez argues the BIA should 

have equitably tolled the time limit and granted his motion. 

“[T]o receive the benefit of equitable tolling, an alien must demonstrate not 

only that the alien’s constitutional right to due process has been violated by the 

conduct of counsel, but that the alien has exercised due diligence in pursuing the case 

during the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 

(10th Cir. 2005) (ellipsis and internal quotation marks omitted). 

The BIA concluded Mr. Suarez-Sanchez had not shown due diligence in 

pursuing his ineffective assistance claim, and specifically noted that he offered no 

explanation for his failure to raise the issue in his first motion to reopen. Indeed, 

aside from the conclusory statement that he “exercised due diligence in this matter,” 

AR at 140, Mr. Suarez-Sanchez’s motion fails to describe in any detail his efforts to 

pursue this claim before the limitation period expired. And as the BIA also 

recognized, Mr. Suarez-Sanchez did not allege that his former attorney’s actions 

caused any delay. Because the BIA provided a rational explanation for declining to 

equitably toll the filing deadline, we conclude it did not abuse its discretion. See

Maatougui, 738 F.3d at 1239. 
5 

V. Third Motion to Reopen 

Mr. Suarez-Sanchez filed a petition to review the BIA’s order denying his 

third motion to reopen (which the BIA construed as a motion to reconsider), but his 

opening brief does not specifically address it. Rather, he argues only that the BIA 

erred by denying his first and second motions to reopen. We therefore conclude 

Mr. Suarez-Sanchez has forfeited any claims related to the third. See Bronson v. 

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (stating, “the omission of an issue in 

an opening brief generally forfeits appellate consideration of that issue”).

VI. Conclusion 

We deny Mr. Suarez-Sanchez’s petitions for review. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge