United States Court of Appeals 

For the First Circuit 

No. 18-1138 

JOSE ALBERTO MEDINA, 

Petitioner, 

v. 

MATTHEW G. WHITAKER, 

ACTING ATTORNEY GENERAL,*

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS 

Before 

Lynch, Stahl, and Kayatta, 

Circuit Judges. 

Randy Olen on brief for petitioner. 

Virginia L. Gordon, Trial Attorney, Civil Division, U.S. 

Department of Justice, Joseph H. Hunt, Assistant Attorney General, 

Civil Division, and Leslie McKay, Senior Litigation Counsel, 

Office of Immigration Litigation, on brief for respondent. 

January 22, 2019 

 * Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney 

General Matthew G. Whitaker has been substituted for former 

Attorney General Jefferson B. Sessions, III as the respondent. 
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STAHL, Circuit Judge. Petitioner Jose Alberto Medina 

("Medina"), a native and citizen of Guatemala, appeals an order of 

the Board of Immigration Appeals ("BIA") denying his motion to 

reopen his immigration proceedings as untimely. Medina concedes 

that the motion, which was filed nearly five years after the BIA 

ordered his removal, fell outside the 90-day limitations period 

set forth by statute and regulation. See 8 U.S.C. § 

1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, he asks this 

court to find that the BIA abused its discretion in rejecting his 

equitable tolling argument which was meant to render his motion 

timely. For the following reasons, we deny the petition. 

I. Factual and Procedural Background 

Medina entered the United States near San Ysidro, 

California, on February 5, 1993. In the summer of 1993, he filed 

an application for asylum with the Immigration and Naturalization 

Service ("INS").1 

On May 23, 2007,2 INS began removal proceedings against 

Medina. In his written pleadings, Medina stated that he was 

seeking asylum, withholding of removal, and relief under the 

 1 "The INS's enforcement functions have since been transferred 

to the Department of Homeland Security (DHS) . . . ." Chedid v. 

Holder, 573 F.3d 33, 34 n.1 (1st Cir. 2009). 

2 The record does not explain why no action was taken for 

fourteen years until April 10, 2007, when Medina was interviewed 

by an INS agent.
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Convention Against Torture ("CAT"). In the alternative, he sought 

voluntary departure. He appeared with his first counsel, Lidia 

Sanchez ("Sanchez"), before an Immigration Judge ("IJ") at a 

hearing on October 10, 2007.3 At the hearing, counsel stated that 

Medina sought asylum and withholding of removal, and in the 

alternative, cancellation of removal, but expressly disavowed any 

claim for relief under the CAT. The IJ then continued the hearing 

to July 7, 2008. 

Because of multiple continuances, the hearing did not 

resume until June 16, 2011. On that date, Sanchez represented 

that Medina conceded removability but still sought cancellation of 

removal or, in the alternative, voluntary departure. Counsel 

further stated that Medina wished to withdraw his applications for 

asylum and withholding of removal. The IJ asked counsel to affirm 

that Medina understood that his withdrawal of those applications 

would be with prejudice, and she affirmed that he did so 

understand. Thereafter, Medina provided oral testimony, the 

content of which is not relevant for resolving this appeal. No 

other witnesses testified at the hearing. 

 3 The hearing was initially scheduled for October 3, 2007. 

However, the IJ postponed it one week because the parties had 

waited an hour-and-a-half for his counsel to arrive, and the "[IJ] 

ha[d] too many cases on [that day] to wait for [Medina's] 

attorney."
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On October 6, 2011, the IJ denied Medina's application 

for cancellation of removal but granted a 60-day voluntary 

departure period. In short, the IJ found that Medina had failed 

to corroborate his credible testimony and failed to demonstrate 

that his removal would cause "exceptional and extremely unusual 

hardship," as required to obtain cancellation of removal, for him 

and his family, including two daughters who were U.S. citizens. 

On November 4, 2011, with the assistance of a new 

attorney, Medina filed a notice of appeal with the BIA. In a brief 

dated March 7, 2012, Medina raised several claims, arguing that he 

was unprepared for his prior hearing, that the IJ failed to provide 

him an opportunity to show that corroborating evidence could not 

be reasonably obtained, and that his first counsel's decision to 

withdraw his asylum claim was "suspect."

The BIA dismissed the appeal on October 23, 2012, finding 

that Medina failed to meet his burden of "demonstrat[ing] 

eligibility for cancellation of removal." Because the 60-day 

period for voluntary departure provided by the IJ had passed, the 

BIA ordered Medina removed from the United States. Despite the 

removal order, however, it appears that Medina neither left the 

United States nor sought judicial review of the removal order. 

On August 21, 2017, with the assistance of his third 

(and current) counsel, Medina filed a motion to reopen his removal 

proceedings with the BIA. In his brief, he alleged that Sanchez 
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rendered ineffective assistance when she withdrew his applications 

for asylum, withholding of removal, and protection under the CAT. 

He theorized that this was because she had been unprepared to 

"prosecute" his claims. He further represented that he had 

complied with the requirements of Matter of Lozada, 19 I&N Dec. 

637 (BIA 1988) for filing a motion to motion to reopen.4 On that 

basis, Medina sought to reopen his removal proceedings, or 

alternatively, equitably toll the 90-day limitations period for 

filing a motion to reopen. In response, Sanchez submitted an 

affidavit refuting Medina's allegations. 

On January 26, 2018, the BIA denied the motion to reopen 

as untimely. See 8 C.F.R. § 1003.2(c)(2). It noted that Medina 

had waited for nearly five years after the BIA originally ordered 

him removed before filing the motion. In addition, the BIA stated 

 4 "Under Lozada, a valid motion to reopen based on ineffective 

assistance of counsel must be supported by: 

(1) an affidavit explaining the petitioner's 

agreement with counsel regarding legal 

representation; (2) evidence that counsel has 

been informed of the allegations of 

ineffective assistance and has had an 

opportunity to respond; and (3) if it is 

asserted that counsel's handling of the case 

involved a violation of ethical or legal 

responsibilities, a complaint against the 

attorney filed with disciplinary authorities 

or, in the alternative, an explanation for why 

such a complaint has not been filed." 

García v. Lynch, 821 F.3d 178, 180 n.2 (1st Cir. 2016). 
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that Medina had not demonstrated that he "pursued his ineffective 

assistance of counsel claim with the requisite due diligence[,]" 

and thus the 90-day limitations period for filing such a motion 

would not be equitably tolled. The BIA further declined to 

exercise its discretionary authority to reopen Medina's 

proceedings sua sponte. This petition for judicial review 

followed.5

II. Analysis 

"Because a motion to reopen removal proceedings is a 

disfavored tool, given the threat it poses to finality, the BIA 

has a fair amount of latitude to grant or deny the motion and our 

review is for abuse of discretion only." Mazariegos v. Lynch, 790 

F.3d 280, 285 (1st Cir. 2015) (citing Perez v. Holder, 740 F.3d 

57, 61 (1st Cir. 2014)). To prevail, the petitioner must show 

that the "BIA committed an error of law or exercised its judgment 

in an arbitrary, capricious, or irrational way." Id. (quoting 

Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)) (internal 

quotation marks omitted). 

A motion to reopen "shall be filed within 90 days of the 

date of entry of a final administrative order of removal." 8 

 5 In his brief, Medina does not seek review of the BIA's 

October 23, 2012 order dismissing his appeal of the IJ's decision. 

Nor does he challenge the BIA's decision not to reopen his 

proceedings sua sponte. Accordingly, our review is limited to the 

BIA's January 26, 2018 denial of Medina's request for equitable 

tolling. See Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007). 
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U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R § 1003.2(c)(2). The 

question of whether equitable tolling applies to motions to reopen 

remains "an open question in the First Circuit." Pineda v. 

Whitaker, 908 F.3d 836, 841 (1st Cir. 2018) (citing Xue Su Wang v. 

Holder, 750 F.3d 87, 90 (1st Cir. 2014)). 

We need not resolve that question today, however, 

because "even assuming equitable tolling were available, we could 

only reach the merits . . . if the Board abused its discretion in 

finding that [petitioner] had not exercised the 'due diligence' 

required by our case law." Chedid v. Holder, 573 F.3d 33, 37 (1st 

Cir. 2009); see also Pineda, 908 F.3d at 841. We have also held 

that "even if equitable tolling were available . . . the doctrine 

should be 'sparingly invoked[.]'" Chedid, 573 F.3d at 37 (quoting 

Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc)). 

"For equitable tolling to apply, a party must establish 

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

some extraordinary circumstance stood in his way.'" Xue Su Wang, 

750 F.3d at 90 (quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 

2010) (per curiam)). Furthermore, the party "must have diligently 

pursued his rights for the entire period he seeks tolled, not 

merely once he discovers the underlying circumstance warranting 

tolling." Neves, 613 F.3d at 36. 

Here, Medina provided the BIA no evidence that he 

continuously pursued his rights. The administrative record only 
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shows that Medina filed an affidavit dated March 8, 2016, stating 

"[f]or the past 3 years, I have stayed in touch with my attorneys." 

This hardly constitutes the "specific details" we have required.6 

Id. at 37. 

In addition, his affidavit only covers the period 

between March 2013 and March 2016. This leaves another 21 months 

unaccounted for, including the period from October 2012, when the 

BIA dismissed his appeal, to March 2013, and the period from March 

2016 to August 2017, when Medina filed the motion to reopen. See 

Jobe, 238 F.3d at 100 n.8 (noting that petitioner must fill in any 

gaps in the timeline). Therefore, the BIA cannot be said to have 

abused its discretion in declining to apply equitable tolling. 

Pineda, 908 F.3d at 842. 

In his brief, Medina also suggests that he was unaware 

of his ineffective assistance of counsel claim until his present 

counsel reviewed his case. However, that contention does not 

 6 Medina also relies on two out-of-circuit cases in support 

of his equitable tolling argument. This reliance is misplaced. 

In Avagyan v. Holder, the Ninth Circuit held that the petitioner 

had diligently pursued relief when she filed a motion to reopen 

within 90 days of learning of her prior counsel's incorrect advice. 

646 F.3d 672, 682 (9th Cir. 2011). Similarly, in Gordillo v. 

Holder, the Sixth Circuit held that the petitioners had diligently 

pursued relief because they had given up their claims only after 

being repeatedly told by multiple lawyers that they did not have 

any rights. 640 F.3d 700, 705 (6th Cir. 2011). By contrast, in 

this case Medina fails to explain his five-year delay before filing 

the motion to reopen, let alone provide the "specific details" 

required by this circuit. See Neves, 613 F.3d at 37. 
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comport with the record. For example, there is evidence that 

Medina was on notice of a potential ineffective assistance of 

counsel claim from as early as March 2012, five years before filing 

the motion to reopen. At that time, his then-counsel wrote in a 

brief to the BIA that "the withdrawal of the asylum application is 

suspect in that [first counsel] indicated [initially] that she was 

proceeding on the [asylum] application and then, without 

consultation . . . withdr[e]w the [asylum] application with 

prejudice." And, by Medina's own admission, the latest he became 

aware of the potential claim was March 8, 2016, when he signed the 

affidavit claiming that Sanchez's assistance was defective. But, 

Medina fails to explain why he took no action seeking relief until 

August 2017, fifteen months later. 

Thus, even assuming equitable tolling could apply to 

motions to reopen, Medina fails to show that he acted with the 

diligence required to obtain such relief. Accordingly, the BIA 

did not abuse its discretion in denying his motion to reopen. 

III. Conclusion 

For the foregoing reasons, the petition for review is 

DENIED.