United States Court of Appeals

for the Fifth Circuit

No. 17-60438

Ruben Ovalles, 

Petitioner,

versus

Jeffrey A. Rosen, Acting U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A040 070 535

ON REMAND FROM 

THE SUPREME COURT OF THE UNITED STATES

Before Jones, Smith, and Elrod, Circuit Judges.

Edith H. Jones, Circuit Judge:

Petitioner Ruben Ovalles asserts on appeal that the Board of 

Immigration Appeals (the “Board”) erroneously failed to apply equitable 

tolling to his motion to reopen in light of Lugo-Resendez v. Lynch, 831 F.3d 337 

(5th Cir. 2016). After considering the record, we DENY Ovalles’s petition 

for review.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2021

Lyle W. Cayce

Clerk

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I. BACKGROUND

This case comes back to the Fifth Circuit upon remand from the 

Supreme Court. See Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 

2018), vacated and remanded 140 S. Ct. 1062 (2020). The facts are 

undisputed. Ovalles is a native and citizen of the Dominican Republic who 

first came to the United States in 1985 as a child. See Ovalles v. Holder, 

577 F.3d 288, 291 (5th Cir. 2009). He grew up in the United States with 

much of his immediate family and attended high school in this country. In 

2003, Ovalles was convicted of attempted drug possession and sentenced to 

five years of probation. He was charged with removability pursuant to 

8 U.S.C. §§ 1227(a)(2)(B)(i) (conviction of a controlled substance violation) 

and 1227(a)(2)(A)(iii) (conviction of an aggravated felony). See Ovalles v. 

Holder, 577 F.3d at 291. An immigration judge (“IJ”) found Ovalles 

removable based on Ovalles’s controlled substance conviction but granted 

his request for cancellation of removal after concluding that Ovalles’s 

conviction was not an aggravated felony. See id. The Board reversed the IJ’s 

grant of cancellation of removal, concluding that Ovalles had in fact been 

convicted of an aggravated felony, and Ovalles did not seek review of the 

Board’s decision from this court. See id. (describing the underlying IJ and 

Board decisions in more detail). Ovalles was removed to the Dominican 

Republic in 2004. See id.

In 2007, Ovalles filed his first motion to reconsider or reopen his 

immigration proceedings. He argued that, under Lopez v. Gonzales,

549 U.S. 47, 127 S. Ct. 625 (2006), his possession offense did not constitute 

an aggravated felony as defined by the Immigration and Nationality Act. 

Ovalles, 577 F.3d at 291. The Board noted that Ovalles’s motion was 

untimely, but ultimately chose not to consider the motion based on the

departure bar. Id. On appeal, Ovalles conceded his motion to reopen was 

untimely. See id. at 299 (recognizing that Ovalles “concededly did not 

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request reopening with[in] the specified allowed time even as calculated from 

the time the law changed”). A panel of this court observed that he waited 

“nearly eight months” after the Supreme Court issued Lopez to file his 

motion and denied Ovalles’s petition as untimely. Id. at 295, 299–300.

Ovalles filed his second motion to reopen—the present motion—in 

March 2017. He argued that Lugo-Resendez “finally delivered [him] with the

final piece to the puzzle” by “permitting the filing of a statutory motion 

through tolling of the 90-day deadline.” The Board denied the motion as 

“untimely and number-barred” and concluded that Ovalles did not 

demonstrate equitable tolling was warranted. On appeal, a panel of this court 

dismissed the petition for lack of jurisdiction, but the Supreme Court 

disagreed. Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 2018) (per 

curiam), vacated and remanded sub nom. Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020). On remand, we now consider whether Ovalles’s 

motion to reopen merits equitable tolling.1

II. DISCUSSION

Denial of a motion to reopen is reviewed under a “highly deferential 

abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 

2005); accord Guerrero-Lasprilla v. Barr, 822 F. App’x 254, 256 (5th Cir. 

2020) (per curiam) (unpublished) (articulating the same standard on remand 

from the Supreme Court). Factual findings are reviewed for substantial 

evidence and legal conclusions are reviewed de novo. Londono-Gonzalez v. 

Barr, 978 F.3d 965, 968 (5th Cir. 2020); Morales v. Sessions, 860 F.3d 812, 

1 The government argues that Ovalles waived his equitable tolling argument by not 

raising the issue in his first motion to reopen and that, alternatively, his petition falls within 

the number-bar limitation for statutory motions to reopen. We do not decide these issues 

because Ovalles does not merit equitable tolling under Fifth Circuit precedent even 

assuming, arguendo, that the issue was not waived or number-barred.

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816–17 (5th Cir. 2017); accord Guerrero-Lasprilla, 822 F. App’x at 256. 

Ovalles argues in his supplemental briefing that the review should be entirely 

de novo because “applying law to facts results in a legal conclusion.” But we 

see no reason to depart from the well-established formulation of the standard 

of review for motions to reopen in this circuit.2 Accord Guerrero-Lasprilla, 

822 F. App’x at 256 (rejecting a similar argument).

In order to equitably toll the 90-day time period to file a statutory 

motion to reopen under 8 U.S.C. § 1229a(c)(7), an alien must demonstrate 

that (1) he “has been pursuing his rights diligently” and (2) an extraordinary 

circumstance prevented him from timely filing. Lugo-Resendez, 831 F.3d at 

344. An intervening legal change can constitute an extraordinary 

circumstance. See Londono-Gonzalez, 978 F.3d at 968; accord GuerreroLasprilla, 822 F. App’x at 256–57. Ovalles contends that the 90-day time 

limit for filing his second motion to reopen should be tolled until he learned 

of the Lugo-Resendez decision in December 2016. But this court recently

concluded that Lugo-Resendez did not constitute an intervening change in 

binding precedent that satisfies the “extraordinary circumstance” element. 

Londono-Gonzalez, 978 F.3d at 968. This is because Lugo-Resendez itself 

recognized that, “[d]espite numerous opportunities to do so,” the Fifth 

Circuit had “not decided whether equitable tolling applies to the 90-day 

deadline for filing a motion to reopen under § 1229a(c)(7).” Lugo-Resendez, 

831 F.3d at 343. Thus, “Lugo-Resendez resolved an open question” and was 

not an intervening change in binding precedent. Londono-Gonzalez, 978 F.3d

at 968. “Moreover, uncertain legal terrain does not create an obstacle that 

stands in the way of an individual meeting the motion to reopen deadline.” 

2 In any event, the result would be the same under either formulation.

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Id. And, as a practical matter, petitioners were in fact filing equitable tolling 

requests prior to the Lugo-Resendez decision. Id.

Ovalles offers two contrary arguments. First, he contends that we

should not decide the case based on a purported lack of extraordinary 

circumstances because “the BIA never made such a finding” and “the 

government cannot defend an agency’s decision on a basis not articulated by 

the agency.” But the Board did conclude that Ovalles “has not shown that 

the time and number limitations on motions should be equitably tolled under 

Lugo-Resendez.” Additionally, the Board stated that Ovalles “has not 

demonstrated the requisite due diligence to warrant equitable tolling” 

because he waited until eight months after Lugo-Resendez was published to 

file his motion, and separately concluded that Ovalles “has not demonstrated 

an exceptional situation warranting sua sponte reopening.”

Importantly, Ovalles does not dispute that his due diligence was 

properly raised, indeed, he calls it the “only merits issue” before this court. 

But due diligence and extraordinary circumstances are related inquiries: an 

alien’s due diligence is considered in light of his circumstances. Thus, 

assessing due diligence necessarily includes a temporal component, which 

involves determining whether and when a purported extraordinary 

circumstance occurred. See Londono-Gonzalez, 978 F.3d at 967–68

(addressing “the diligence issue” on remand with a focus on “when to 

measure diligence,” concluding that Lugo-Resendez was not an 

“extraordinary circumstance that stood in his way,” and holding that the 

Board did not err in measuring diligence based on a different case).

The Board concluded that Ovalles did not demonstrate due diligence 

because “he waited approximately [eight] months after the Fifth Circuit 

issued Lugo-Resendez v. Lynch . . . to file his current motion.” This 

conclusion applies with even greater force in light of the conclusion in 

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Londono-Gonzalez that Lugo-Resendez did not constitute an extraordinary 

circumstance that stood in the way of aliens seeking equitable tolling.

Second, Ovalles argues that Lopez v. Gonzales establishes an 

extraordinary circumstance. But the extraordinary circumstance must have 

“stood in his way and prevented timely filing” of his second motion to 

reopen in March 2017. Lugo-Resendez, 831 F.3d at 344. Lopez was decided in 

2006. Thus, if Lugo-Resendez doesn’t constitute an extraordinary 

circumstance (and this court has previously determined that it does not), 

then Ovalles presents no viable alternative from which he can show 

compliance with the 90-day filing deadline even with the benefit of equitable 

tolling.3

III. CONCLUSION

Based on the foregoing, we DENY the petition for review.

3 The other cases cited by Ovalles pre-date Lugo-Resendez. See, e.g., Mata v. Lynch, 

576 U.S. 143, 135 S. Ct. 2150 (2015); Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012). 

Furthermore, the Londono-Gonzalez decision also casts doubt on whether Mata could 

constitute extraordinary circumstances for tolling purposes. Londono-Gonzalez, 978 F.3d

at 968 (“But prior to Mata and Lugo-Resendez, petitioners in this circuit were regularly 

asking the BIA to equitably toll the motion to reopen limitations period.”).

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