Case: 18-776 Guerrero-Lasprilla v. Barr and 18-1015 OVALLES V. BARR (2019-DEC-09)
/58:15/S1:E25
QUESTION PRESENTED:
18-776
The deadline to file a statutory motion to reopen under 8 U.S.C. § 1229a(c)(7) is subject to equitable tolling; all the courts of appeals are in agreement. But they are in conflict as to whether they have jurisdiction to review an agency's denial of a request for equitable tolling made by someone subject to the "criminal alien bar" pursuant to 8 U.S.C. § 1252(a)(2)(C).
The Fifth and Fourth circuit say review of equitable tolling is a "question of fact" precluded from review under 8 U.S.C. § 1252(a)(2)(C). In contrast, the Ninth circuit says equitable tolling is a "mixed question," i.e., "a question of law," which falls under the jurisdictional savings clause under 8 U.S.C. § 1252(a)(2)(D ).
Therefore, the question presented is:
Is a request for equitable tolling, as it applies to statutory motions to reopen, judicially reviewable as a "question of law?"
18-1015
Following this Court's judgment in Mata v. Lynch, 135 S. Ct. 2150 (2015), the Fifth Circuit joined all of its sister circuits in holding that the statutory deadline for filing a motion to reopen a removal order is subject to equitable tolling. Lugo-Resendez v. Lynch, 831 F 3d 337 (CA5 2016). In so doing, the Fifth Circuit adopted this Courts standard for equitable tolling from Menominee Indian Tribe of Wis. v. United States, 136 S. Ct 750 (2016).
Thereafter, the Fifth Circuit held that it lacked jurisdiction to review the merits of whether a movant (with criminal removability) pursued their rights diligently, thus further dividing a split between the courts of appeals. Penalva v. Sessions, 884 F 3d 521 (CA5 2018). The question presented here is:
Whether the application of a legal standard to an undisputed set of facts is a question of law, or a pure question of fact that may be barred from judicial review. Or, more specifically:
Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
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QUESTION PRESENTED:
18-776
The deadline to file a statutory motion to reopen under 8 U.S.C. § 1229a(c)(7) is subject to equitable tolling; all the courts of appeals are in agreement. But they are in conflict as to whether they have jurisdiction to review an agency's denial of a request for equitable tolling made by someone subject to the "criminal alien bar" pursuant to 8 U.S.C. § 1252(a)(2)(C).
The Fifth and Fourth circuit say review of equitable tolling is a "question of fact" precluded from review under 8 U.S.C. § 1252(a)(2)(C). In contrast, the Ninth circuit says equitable tolling is a "mixed question," i.e., "a question of law," which falls under the jurisdictional savings clause under 8 U.S.C. § 1252(a)(2)(D ).
Therefore, the question presented is:
Is a request for equitable tolling, as it applies to statutory motions to reopen, judicially reviewable as a "question of law?"
18-1015
Following this Court's judgment in Mata v. Lynch, 135 S. Ct. 2150 (2015), the Fifth Circuit joined all of its sister circuits in holding that the statutory deadline for filing a motion to reopen a removal order is subject to equitable tolling. Lugo-Resendez v. Lynch, 831 F 3d 337 (CA5 2016). In so doing, the Fifth Circuit adopted this Courts standard for equitable tolling from Menominee Indian Tribe of Wis. v. United States, 136 S. Ct 750 (2016).
Thereafter, the Fifth Circuit held that it lacked jurisdiction to review the merits of whether a movant (with criminal removability) pursued their rights diligently, thus further dividing a split between the courts of appeals. Penalva v. Sessions, 884 F 3d 521 (CA5 2018). The question presented here is:
Whether the application of a legal standard to an undisputed set of facts is a question of law, or a pure question of fact that may be barred from judicial review. Or, more specifically:
Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
