IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60094

Summary Calendar

FREDDIE BALMORE CASTILLO, also known as Fredis Castillo,

Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A090 472 547

Before DAVIS, JONES, and GRAVES, Circuit Judges. 

PER CURIAM:*

Freddie Balmore Castillo petitions for review of the decision of the Board 

of Immigration Appeals (BIA) denying his motion to reconsider its denial of his 

untimely motion to reopen his removal proceedings. Castillo argues that the 

BIA erred in declining to exercise its sua sponte authority to reopen removal 

proceedings and that, in the alternative, he was entitled to equitable tolling.

 

* 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

June 2, 2016

Lyle W. Cayce

Clerk

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No. 15-60094

2

We lack jurisdiction to review the BIA’s discretionary decision whether 

to exercise its sua sponte authority to reopen removal proceedings. See 

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Insofar 

as Castillo argues that we retain jurisdiction because the BIA’s discretionary 

denial of relief violated his constitutional due process rights by denying him a 

hearing on the merits of his cancellation of removal application, Castillo 

received a full and fair immigration hearing and “discretionary relief from 

removal . . . is not a liberty or property right that requires due process 

protection.” Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). 

Moreover, contrary to Castillo’s assertion, our jurisdiction is not restored 

by a “gross miscarriage of justice” claim. See 8 C.F.R. § 1003.2(a). Castillo’s 

reliance on Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006), and Lara 

v. Trominski, 216 F.3d 487 (5th Cir. 2000), is misplaced because these cases 

did not address whether we had jurisdiction to review a decision by the BIA 

not to exercise its sua sponte authority to reopen immigration proceedings but, 

instead, considered whether a federal court has jurisdiction to consider an 

alien’s collateral challenge to the reinstatement of a prior removal order. See 

Ramirez-Molina, 436 F.3d at 510-15; Lara, 216 F.3d at 492-95. Indeed, 

Castillo fails to cite any authority suggesting a “gross miscarriage of justice” 

exception to our lack of jurisdiction over the BIA’s failure to reopen proceedings 

sua sponte. Even if such an exception existed, Castillo does not explain how 

he suffered a gross miscarriage of justice. See Ramirez-Molina, 436 F.3d at 

514-15 (noting that there is no precise standard for determining what 

constitutes a gross miscarriage of justice and dismissing petition for lack of 

jurisdiction after concluding that petitioner had not demonstrated a gross 

miscarriage of justice). 

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No. 15-60094

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Additionally, we note that even if the immigration statutes are subject 

to equitable tolling, Castillo has failed to show that such tolling would apply. 

See Mata v. Lynch, 135 S. Ct. 2150, 2156 & n.3 (2015) (expressing no opinion

as to whether the immigration statutes allow equitable tolling). Castillo did 

not expressly argue before the BIA that the applicable time limitations for 

filing his motion to reopen should be equitably tolled and does not adequately 

argue in his petition for review that he is entitled to equitable tolling. See 

Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010) (noting that the burden 

of establishing equitable tolling rests with the petitioner). 

Accordingly, the petition for review is DENIED in part and DISMISSED 

in part for lack of jurisdiction. 

 Case: 15-60094 Document: 00513531023 Page: 3 Date Filed: 06/02/2016