United States Court of Appeals

for the Fifth Circuit

____________

No. 21-60820

Summary Calendar

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Alejandro Castillo-Trevino, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

______________________________

Petition for Review of an Order of the 

Board of Immigration Appeals

Agency No. A018 950 320

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Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam:

*

Petitioner Alejandro Castillo-Trevino, a native and citizen of Mexico, 

petitions us to review a decision of the Board of Immigration Appeals (BIA)

dismissing his appeal. Castillo-Trevino pleaded guilty to a felony in 2004 and 

was ordered removed in 2005. In 2021, Castillo-Trevino filed a pro se motion 

before the immigration judge (IJ) to reopen his removal proceedings. The IJ

declined to equitably toll the 90-day limitations period under 8 U.S.C. § 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 22, 2023

Lyle W. Cayce

Clerk

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No. 21-60820

2

1229a(c)(7)(C) and denied the motion to reopen pursuant to the departure 

bar under 8 C.F.R. § 1003.23(b)(1).

We consider the IJ’s decision in our review because the BIA adopted 

it. See Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016). We review 

the denial of a motion to reopen for abuse of discretion. Flores-Moreno v. Barr, 

971 F.3d 541, 544 (5th Cir. 2020). We have jurisdiction to review “whether 

an undisputed set of facts demonstrates diligence on the part of an alien 

requesting equitable tolling.” Londono-Gonzalez v. Barr, 978 F.3d 965, 967 

(5th Cir. 2020); see 8 U.S.C. § 1252(a)(2)(D).

Equitable tolling is only warranted if the Petitioner demonstrates “(1) 

that he has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely filing.” 

Flores-Moreno, 971 F.3d at 545 (internal quotation marks and citation 

omitted). The diligence element “requires the litigant to establish that he 

pursued his rights with reasonable diligence, not maximum feasible 

diligence.” Id. (internal quotation marks and citation omitted). 

The IJ and BIA did not err in determining that Castillo-Trevino failed 

to demonstrate the diligence required for equitable tolling. See Flores-Moreno, 

971 F.3d at 545. The legal remedy of a motion to reopen has existed since well 

before Castillo-Trevino was ordered removed in 2005. See Garcia-Carias v.

Holder, 697 F.3d 257, 261 (5th Cir. 2012) (recounting the remedy’s history). 

Castillo-Trevino fails to adequately describe his attempts to obtain legal assistance—during the 16 years between his removal and motion to reopen—

and why he would not have learned of a basis for filing his motion to reopen 

earlier. He provides no reason for waiting until 2021 to act on his cited 

changes in law. See Londono-Gonzalez, 978 F.3d at 968 (upholding the BIA’s 

denial of equitable tolling when the motion to reopen was filed more than 

three years after issuance of the pertinent case law). 

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Castillo-Trevino’s motion does not qualify as a statutory motion to 

reopen under § 1229a(c)(7) because there is no equitable tolling here. See 

Lugo-Resendez, 831 F.3d at 342-43. The BIA and IJ were correct in finding 

that the departure bar applied. See Ovalles v. Holder, 577 F.3d 288, 299-300 

(5th Cir. 2009); § 1003.23(b)(1). We therefore need not address CastilloTrevino’s remaining contentions, but we note that this case does not present 

exceptional circumstances warranting an appointment of counsel. See Ulmer 

v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).

The petition for review is DENIED.

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