IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60017

JUAN RAMON TARANGO, also known as Ramon Tarango, 

 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. A 090 398 253

Before KING, JONES, and ELROD, Circuit Judges.

PER CURIAM:*

Juan Ramon Tarango petitions for review of the Board of Immigration 

Appeals’s denial of his third motion to reopen his immigration proceedings as 

untimely and numerically barred. Tarango contends that the Board erred in 

failing to address his argument that equitable tolling renders his motion 

timely, but he does not address why his motion is not number-barred, in 

addition to being untimely. Because this is Tarango’s third successive motion 

 

* 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

September 5, 2017

Lyle W. Cayce

Clerk

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to reopen, we interpret it as a motion for the Board to exercise its discretionary 

authority to sua sponte reopen Tarango’s proceedings. Accordingly, we 

DISMISS his petition for lack of jurisdiction over the Board’s use of its sua 

sponte authority.

I. FACTUAL AND PROCEDURAL BACKGROUND

Juan Ramon Tarango is a native and citizen of Mexico. In 1974, he 

entered the United States as a baby, without inspection by an immigration 

officer, and adjusted his status to lawful permanent resident in 1988. In 1996, 

Tarango pleaded guilty in Harris County, Texas, to intentionally and 

knowingly possessing less than one gram of cocaine, for which he received a 

deferred adjudication of guilt and two years’ probation. Shortly afterwards, 

the former Immigration and Naturalization Service issued Tarango an Order 

to Show Cause and Notice of Hearing, which charged that Tarango was 

deportable based on this controlled substance conviction. See 8 U.S.C. 

§ 1227(a)(2)(B)(i) (1996) (currently codified at 8 U.S.C. § 1227(a)(2)(B)(i)) 

(providing that any alien who, after admission, is convicted of violating any 

law “relating to a controlled substance [other than for an inapplicable 

exception] . . . is deportable”). On December 8, 1998, an immigration judge 

ordered Tarango deported. Tarango alleges that he was ultimately deported

to Mexico in 2009. 

In February 2012, Tarango filed his first motion to reopen his 

immigration proceedings, in which he argued, among other things, that 

previously unavailable evidence (namely, a recently decided case from this 

circuit) established that he was eligible for cancellation of removal. The Board 

of Immigration Appeals (BIA) denied Tarango’s motion on the basis that 

because he had been placed in deportation proceedings, he was ineligible for 

cancellation of removal. In June 2013, Tarango filed a second motion to reopen, 

this time requesting that the BIA exercise its sua sponte authority to reopen 

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his immigration proceedings. He argued that, subsequent to his removal order, 

fundamental changes in the law had affected his eligibility for a waiver of 

deportation under former 8 U.S.C. § 1182(c), and thus his case presented an 

exceptional circumstance warranting reopening. But the BIA again declined 

to reopen, finding it unwarranted because Tarango was statutorily ineligible 

for a waiver. Tarango petitioned this court for review, and we dismissed his 

petition for lack of jurisdiction because it sought review of the BIA’s use of its 

sua sponte authority. Tarango v. Holder, 592 F. App’x 293, 295 (5th Cir. 2014) 

(per curiam).

Tarango filed his third motion to reopen—the subject of the instant

petition for review—in September 2015. He argued that, based on the 

Supreme Court’s recent decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), he 

was entitled to equitable tolling of the statutory deadline for filing his motion, 

rendering it timely. He reiterated his request that the proceedings be reopened 

to allow him to apply for a waiver of deportation. The BIA denied the motion, 

finding it both untimely and number-barred. The BIA further noted that it 

declined to exercise its sua sponte authority to reopen Tarango’s proceedings 

because he was statutorily ineligible for a waiver of deportation. Tarango filed 

a timely petition for review with this court. 

II. JURISDICTION OVER THIS PETITION

We begin our analysis of a petition for review of a BIA decision by 

determining whether we have jurisdiction to conduct such a review. Rodriguez 

v. Holder, 705 F.3d 207, 210 (5th Cir. 2013). Regardless of our jurisdiction over 

the underlying petition, we always have jurisdiction to review jurisdictional 

facts. Id. We review questions of jurisdiction de novo. Id.; see also Hadwani 

v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Because we 

conclude we lack jurisdiction over Tarango’s petition, we do not address the 

merits of his equitable tolling argument. 

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Tarango petitions for review of the BIA’s denial of his third motion to 

reopen. “A motion to reopen is a form of procedural relief that asks the [BIA] 

to change its decision in light of newly discovered evidence or a change in 

circumstances since the hearing.” Lugo–Resendez v. Lynch, 831 F.3d 337, 339

(5th Cir. 2016) (alteration omitted) (quoting Dada v. Mukasey, 554 U.S. 1, 12 

(2008)). A motion to reopen may also be made in order to obtain discretionary 

relief that was not available at the time of the original hearing. 1 Immigr. Law 

and Defense § 9:13. An alien has two avenues through which he may move to

reopen proceedings: a statutory motion to reopen or a regulatory motion to 

reopen. Lugo–Resendez, 831 F.3d at 340–41. First, an alien subject to a 

deportation order has a statutory right to file one motion to reopen the 

proceedings. 8 U.S.C. § 1229a(c)(7)(A); see Mata, 135 S. Ct. at 2153. Subject 

to exceptions not relevant here,1 a statutory motion to reopen must be filed 

within 90 days of the final removal order. 8 U.S.C. § 1229a(c)(7)(C). However, 

this 90-day deadline is subject to equitable tolling “in certain circumstances.” 

Lugo–Resendez, 831 F.3d at 343–44. In general, we have jurisdiction over a 

petition seeking review of the denial of a statutory motion to reopen, including 

those based on the denial of equitable tolling. Mata, 135 S. Ct at 2154 (citing 

Kucana v. Holder, 558 U.S. 233, 242 (2010)).

In addition to a statutory motion to reopen, an alien can file a regulatory 

motion to reopen, which invokes the BIA’s or immigration judge’s discretionary 

authority to sua sponte reopen the removal proceedings at any time. Lugo–

Resendez, 831 F.3d at 340–42; see 8 C.F.R. §§ 1003.2(a), 1003.23(b). The BIA 

invokes its sua sponte authority “sparingly, treating it not as a general remedy 

 

1 The 90-day deadline does not apply to (1) aliens seeking asylum who can point to 

“changed country conditions” in the country to which they were removed; (2) battered 

spouses, children, and parents who meet certain specifications; (3) aliens who jointly file the 

motion to reopen with the Government; and (4) certain aliens who were ordered removed in 

absentia. 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv); 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4). 

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for any hardships created by enforcement of the time and number limits in the 

motions regulations, but as an extraordinary remedy reserved for truly 

exceptional situations.” In re G-D-, 22 I & N Dec. 1132, 1133–34 (BIA 1999). 

The regulations vest the decision of whether to sua sponte reopen entirely in 

the discretion of the immigration judge or the BIA, and as a result, we have 

“no legal standard against which to judge” the denial of a regulatory motion to 

reopen. Enriquez–Alvarado v. Ashcroft, 371 F.3d 246, 250 (5th Cir. 2004); see 

also Mata, 135 S. Ct. at 2155 (noting holding in Enriquez–Alvarado and 

“assuming arguendo” that it was correct). Accordingly, bound as we are by our 

rule of orderliness, see Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 

(5th Cir. 2008), we do not have jurisdiction over a petition seeking review of 

the denial of a regulatory motion to reopen, Enriquez–Alvarado, 371 F.3d at

249–50. 

Thus, whether we have jurisdiction over Tarango’s petition turns on 

whether his motion to reopen was filed pursuant to his statutory right or, 

instead, his motion invokes the BIA’s sua sponte authority to reopen. To 

distinguish between the two types of motions to reopen, we rely on whether the 

alien’s motion complies with the statute. “[A] motion to reopen that does not 

comply with the [statutory] requirements . . . must be construed as a 

regulatory motion to re-open.” Lugo–Resendez, 831 F.3d at 342. The statutory 

requirements provide that an alien may file “one motion to reopen 

proceedings . . . within 90 days of entry of a final administrative order of 

removal.” 8 U.S.C. § 1229a(c)(7) (emphasis added). In other words, a motion 

to reopen constitutes a statutory motion to reopen only if it complies with the 

numerical and time limitations imposed by the statute, or if its untimeliness 

may be excused on the basis of equitable tolling. Lugo–Resendez, 831 F.3d at 

342–43.

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Tarango’s motion complies with neither of these limitations. It is 

undisputed that this is his third motion to reopen—two more than the 

numerical limit—and that the motion was filed years after his final 

deportation order, long after the 90 day statutory deadline. Tarango’s brief 

offers a basis to excuse the untimeliness of his motion, but not the fact that it 

is numerically barred. In his brief, Tarango discusses his equitable tolling 

argument only in relation to the time limitation on motions to reopen, not the 

numerical limitation. Thus, even if we assume arguendo that Tarango is 

entitled to equitable tolling of the statutory deadline excusing the motion’s 

untimeliness, as Tarango asserts, we are still left with the numerical limit. An 

alien has a statutory right to file only one motion to reopen. 8 U.S.C. 

§ 1229a(c)(7). Tarango offers no argument for why his motion to reopen—his 

third such motion—complies with the numerical limitation provided in the 

statute. Indeed, we have only applied equitable tolling to the time limitation 

on motions to reopen and have never held that it may also apply to the 

numerical limitation.2 Lugo–Resendez, 831 F.3d at 343–44 (holding only that 

 

2 Many of our sister circuits have also left this an open question. See Singh v. Sessions, 

--- F. App’x ---, 2017 WL 2126588, at *3 (10th Cir. 2017) (“[W]hether the number limitation 

may . . . be equitably tolled remains an open question.”); Ruiz–Turcios v. U.S. Att’y Gen., 717 

F.3d 847, 850 (11th Cir. 2013) (“[T]here is no precedent in [the Eleventh Circuit] which has 

addressed whether [the] one-motion limitation is . . . subject to equitable tolling.”); Tapia–

Martinez v. Gonzales, 482 F.3d 417, 422–23 (6th Cir. 2007) (“[The Sixth Circuit] has never 

held that equitable tolling applies to numerical limitations on motions to reopen.” (quoting 

Sene v. Gonzales, 180 F. App’x 551, 555 (6th Cir. 2006))); Luntungan v. Att’y Gen., 449 F.3d 

551, 557 (3d Cir. 2006) (“[The Third Circuit] ha[s] not issued a precedential opinion deciding 

whether numerical limits on motions to reopen may be equitably tolled . . . .”). Further, the 

few sister circuits that have decided the question have not permitted the numerical limitation 

to be equitably tolled on the basis of changes in the law, which is the basis urged by Tarango. 

See Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008) (permitting equitable tolling of the 

number limit where the petitioner alleges ineffective assistance of counsel); Iturribarria v. 

INS, 321 F.3d 889, 897 (9th Cir. 2003) (permitting equitable tolling of the numerical limits 

“during periods when the petitioner is prevented from filing because of deception, fraud, or 

error”); Davies v. INS, 10 F. App’x 223, 224 (4th Cir. 2001) (per curiam) (permitting equitable 

tolling of numerical limitation where the petitioners alleged ineffective assistance of counsel).

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equitable tolling applies to the time limitation and not addressing the 

numerical limitation). Because Tarango does not argue that he is entitled to 

equitable tolling of the numerical limitation, we need not, and do not, address 

this question today. 

Tarango’s motion to reopen did not comply with the statute’s numerical 

limitation and he does not offer a basis for excusing this noncompliance. 

Accordingly, we must construe it as a regulatory motion to reopen invoking the 

BIA’s sua sponte power to reopen proceedings. Id. at 342–43. But, under our 

rule of orderliness, we lack jurisdiction over a petition seeking review of the 

BIA’s use of its sua sponte authority. Enriquez–Alvarado, 371 F.3d at 249–50. 

We therefore lack jurisdiction over Tarango’s petition for review.

The only argument that Tarango offers in support of our jurisdiction is 

unavailing. Tarango urges that, following the Supreme Court’s decision in 

Mata, all motions to reopen are filed pursuant to statute. According to 

Tarango, Mata abolished regulatory motions to reopen. Thus, he claims, this 

court must possess jurisdiction over his motion to reopen. However, Tarango 

mischaracterizes Mata’s holding. Mata did not end regulatory motions to 

reopen, nor did it disturb our precedent, Enriquez–Alvarado, 371 F.3d at 249–

50, holding that we lack jurisdiction over petitions for review of such motions. 

To the contrary, Mata recognized this holding and left it intact. 135 S. Ct. at 

2155 (acknowledging holding in Enriquez-Alvarado and “[a]ssuming 

arguendo” that it was correct); see also Lugo–Resendez, 831 F.3d at 343

(recognizing the continued existence of regulatory motions to reopen postMata). Mata merely held that untimeliness of a motion to reopen could not 

serve as a basis for depriving this court of jurisdiction if the alien argues that 

he is entitled to equitable tolling of the statutory deadline. 135 S. Ct. at 2155. 

Here, Tarango does not argue that the numerical limitation in the statute 

should be equitably tolled, nor does he provide any other basis on which his 

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noncompliance with this limit should be excused. Therefore, Mata does not 

provide a basis upon which to exercise jurisdiction over Tarango’s petition for 

review.

III. CONCLUSION

The petition for review is DISMISSED for lack of jurisdiction. 

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