U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, S11ile 2000
Falls Church. Virgi11ia 2204 /

OHS/ICE Office of Chief Counsel - HUN

PO Box 237
Huntsville, TX 77342-0237

Name: MEDINA LEON, ANTONIO

A 090-919-097

Date of this notice: 2/8/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

De Ct1/V't.)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Antonio Medina Leon, A090 919 097 (BIA Feb. 8, 2016)

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Gonzalez, Raed Olivieri

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U.S. Department of Justice

E)cecutive Office for Immigration Review

Decision of the Board of Immigration Appeals

Fans Church, Virginia 22041

File: A090 919 097 - Houston, TX

Date:

In re: ANTONIO MEDINA LEON a.k.a. Antonioleon Medina

APPEAL
ON BEHALF OF RESPONDENT: Raed Olivieri Gonzalez, Esquire
APPLICATION: Reopening
This case was last before the Board on April 17, 2015, when we dismissed the respondent's
appeal of the Immigration Judge's January 14, 2015, decision denying his untimely motion to
reopen the proceedings sua sponte. This case is now before the Board pursuant to an August 19,
2015, order of the United States Court of Appeals for the Fifth Circuit, granting the parties' joint
motion to remand for consideration of what effect, if any, the Supreme Court's intervening
decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), has on the treatment of the respondent's
untimely motion to reopen as a request for sua sponte reopening. The record will be remanded
to the Immigration Judge for further proceedings consistent with this opinion and for entry of a
new decision.
In our April 17, 2015, decision, we stated that, contrary to the respondent's appellate
assertions, we did not construe Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012), to allow
consideration of his motion sua sponte. However, subsequent to our decision, the Supreme
Court issued its decision in Mata v. Lynch, a case involving the circuit court's jurisdiction over
an untimely motion. See id. Therein, the Supreme Court noted that the Fifth Circuit had
impermissibly interpreted a request for equitable tolling of the motions deadline as a request for
sua sponte reopening. See id. Thus, notwithstanding Fifth Circuit case law to the contrary, a
request for equitable tolling is a separate request from one that seeks sua sponte reopening.
While a request for sua sponte reopening may still be subject to the departure bar per Garcia
Carias, it is a separate question whether a respondent has a right to file a motion after leaving the
United States. Further, per Mata, the request for equitable tolling of the deadline--and
presumably the distinct issues that must be addressed to adjudicate that request--is separate from
a request for sua sponte reopening. To determine whether the motions deadline can be equitably
tolled, the Immigration Judge will need to make direct findings on the factors that would or
would not permit equitable tolling in this case, separate from the sua sponte question.
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
ORDER: The record is remanded tcf the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.

Cite as: Antonio Medina Leon, A090 919 097 (BIA Feb. 8, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS