IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60330

Summary Calendar

JOSE MARIA VILLATORO-AVILA, 

 Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A090 968 520

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Jose Maria Villatoro-Avila petitioned this court for review of the Board 

of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal 

proceedings. He argued primarily that the BIA abused its discretion in refusing 

to equitably toll the deadline to file motions to reopen. We denied his petition 

in part and dismissed it in part for lack of jurisdiction, holding that the BIA 

 

* 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

November 10, 2015

Lyle W. Cayce

Clerk

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had complete discretion to deny Villatoro-Avila’s equitable tolling request. 

Villatoro-Avila v. Holder, 598 F. App’x 278 (5th Cir. 2015) (per curiam).

Villatoro-Avila filed a motion for panel and en banc rehearing. We then 

stayed further proceedings and stayed deportation pending the Supreme 

Court’s decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), in which the issue 

was whether courts of appeals have jurisdiction to review the BIA’s refusals to 

equitably toll the deadline for motions to reopen. 

In June, the Supreme Court decided Mata, holding that courts of appeals 

do have jurisdiction over the denials at issue. Id. at 2155-56. Counsel for the 

government then filed a status report advising that “remand of the case may 

be warranted” and “request[ing] that the Court continue to hold the case in 

abeyance for an additional fourteen days, to allow her to determine whether to 

file such a motion.” The government did not, however, file a motion or advise 

that it would not be filing one. Nor did Villatoro-Avila move for any substantive 

relief.1 In July, we removed this case from abeyance.

Now before us is Villatoro-Avila’s rehearing petition, which we treat as 

a petition for panel rehearing. We GRANT that petition in part and, in light of 

Mata, vacate our prior opinion to the extent that it dismissed Villatoro-Avila’s 

petition for lack of jurisdiction. See id. at 2155-56. But we DENY his petition

for review because the BIA did not abuse its discretion in refusing to equitably 

toll the deadline to move to reopen his removal proceedings. United States v. 

English, 400 F.3d 273, 275 (5th Cir. 2005) (noting that “equitable tolling is only 

appropriate in ‘rare and exceptional circumstances’”). Villatoro-Avila did not 

exercise diligence in bringing his ineffective assistance claim: By the time he 

 

1 In July, Villatoro-Avila retained new counsel. Simultaneously, the court received 

Villatoro-Avila’s pro se motion noting that he was seeking assistance of counsel and 

requesting that the court continue to hold the case in abeyance. Because counsel had entered 

an appearance by the time the court received Villatoro-Avila’s motion, the clerk’s office did 

not file the motion and we did not act on the motion.

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brought it, fourteen years had passed since his removal proceedings, the 

removal order had been reinstated three times, and he had been prosecuted 

twice for illegal reentry.

The petition for review is DENIED.

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