Moriano-Ospina v. Blanche
CourtCourt of Appeals for the Fifth Circuit
Date FiledOctober 27, 2026
Docket25-60430
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Case: 25-60430 Document: 70-1 Page: 1 Date Filed: 10/27/2026
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 27, 2026
No. 25-60430 Thomas B. Plunkett, III
____________ Clerk
Alexis H. Moriano-Ospina,
Petitioner,
versus
Todd Wallace Blanche, U.S. Attorney General,
Respondent.
______________________________
Appeal from the Board of Immigration Appeals
Agency No. A089 102 088
______________________________
Before Richman, Higginson, and Douglas, Circuit Judges.
Per Curiam:*
Alexis H. Moriano-Ospina (“Moriano”) petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) denying his motion
to reopen removal proceedings to allow him to apply for cancellation of
removal. For the following reasons, the petition for review is DENIED in
part and DISMISSED in part.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 25-60430 Document: 70-1 Page: 2 Date Filed: 10/27/2026
No. 25-60430
I
Moriano, a native and citizen of Colombia, entered the United States
on November 1, 2008, with his mother and siblings, at the age of twelve. The
family was issued defective Notices to Appear (“NTAs”) shortly after
arrival, and their pursuit of relief in U.S. immigration proceedings was
unsuccessful.
On November 20, 2008, shortly after Moriano and his family entered
the United States, Moriano, his mother, and his siblings were each issued an
NTA that charged them with removability pursuant to Section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”). See
8 U.S.C. § 1182(a)(7)(A)(i). Moriano indicates that the NTAs lacked the
statutorily required hearing date and time. See 8 U.S.C. § 1229(a)(1)(G)(i).
In a July 2009 hearing, Moriano’s mother admitted the allegations in the
NTAs and conceded the removal charge. The family’s subsequent asylum
and withholding of removal applications were denied in March 2010, and the
BIA affirmed in September 2011. Moriano and his family sought review of
the Board’s 2011 decision, and our court denied the petition for review.
Ospina-Ramirez v. Holder, 479 F. App’x 562, 564 (5th Cir. 2012) (per curiam)
(unpublished).
Moriano married a United States citizen in April 2021. In early 2025,
Moriano began the process of seeking to regularize his status via an I-130
Petition for Alien Relative filed by his wife, which was received by United
States Customs and Immigration Services on April 3. On March 25, 2025,
Immigration and Customs Enforcement (“ICE”) detained Moriano during
a routine check-in.
When Moriano contacted a lawyer following his March 2025
detention, Moriano learned that marriage to a U.S. citizen provided grounds
for cancellation of removal. Moriano argued that the Board should consider
2
Case: 25-60430 Document: 70-1 Page: 3 Date Filed: 10/27/2026
No. 25-60430
his motion to reopen timely based on the doctrine of equitable tolling, due to
his young age at the time of his removal order and his “lack of knowledge.”
The Board denied the motion, finding that Moriano failed to
demonstrate the requisite extraordinary circumstances and failed to exercise
reasonable diligence in pursuing his rights. The Board did not exercise its
sua sponte authority to reopen Moriano’s immigration proceedings.
On appeal, Moriano claims that the BIA erred in (A) denying his
motion to reopen his proceedings under 8 U.S.C. § 1252(a) and (B) failing to
reopen his proceedings sua sponte.
II
With respect to Moriano’s second issue on appeal, we generally lack
jurisdiction to review the Board’s decision not to reopen immigration
proceedings sua sponte. See Garcia Morin v. Bondi, 152 F.4th 626, 631 (5th
Cir. 2025) (citing Qorane v. Barr, 919 F.3d 904, 911–12 (5th Cir. 2019)). As
we explain below, to the extent there may be narrow exceptions to this rule,
Moriano does not show they apply.
Regarding Moriano’s first issue on appeal, we have jurisdiction to
review the Board’s denial of the motion to reopen proceedings under 8
U.S.C. § 1252(a). Banda-Ortiz v. Gonzales, 445 F.3d 387, 338 (5th Cir. 2006).
We review the Board’s denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Lugo-Resendez v. Lynch, 831 F.3d
337, 340 (5th Cir. 2016); Kucana v. Holder, 558 U.S. 233, 242 (2010). Legal
questions are considered de novo and factual findings are reviewed for
substantial evidence. Gonzalez Hernandez v. Garland, 9 F.4th 278, 283 (5th
Cir. 2021). The BIA “abuses its discretion when it issues a decision that is
capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
3
Case: 25-60430 Document: 70-1 Page: 4 Date Filed: 10/27/2026
No. 25-60430
unexplained departures from regulations or established policies.” Lugo-
Resendez, 831 F.3d at 340 (citation modified).
III
Below we address Moriano’s two issues on appeal. First, we find that
the BIA did not abuse its discretion in rejecting Moriano’s equitable-tolling
argument; thus, we deny that part of his petition. Concerning Moriano’s
second issue on appeal, Moriano has not demonstrated that the Board’s
decision not to exercise its sua sponte authority to reopen his proceedings
falls within any jurisdictional exceptions that would allow us to adjudicate
that claim; accordingly, we dismiss that part of his petition.
A
The Board did not abuse its discretion in refusing to equitably toll
Moriano’s motion to reopen. Moriano generally cited his young age at the
time of his removal order and his “lack of knowledge about the opportunity
to reopen his removal proceedings.” Because Moriano did not demonstrate
that his young age caused his delayed filing and that he diligently pursued his
rights, the Board properly declined Moriano’s request.
Generally, a motion to reopen BIA proceedings may be filed within
ninety days of issuance of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). The ninety-day statutory
deadline, however, may be equitably tolled. See Lugo-Resendez, 831 F.3d at
343–44. “[A] litigant is entitled to equitable tolling of a statute of limitations
only if the litigant establishes two elements: ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.’” Lugo-Resendez, 831 F.3d at 344 (quoting
Menominee Indian Tribe of Wis. v United States, 577 U.S. 250, 255 (2016)); see
also Holland v. Florida, 560 U.S. 631, 649 (2010). “The first element requires
the litigant to establish that he pursued his rights with reasonable diligence,
4
Case: 25-60430 Document: 70-1 Page: 5 Date Filed: 10/27/2026
No. 25-60430
not maximum feasible diligence,” and “the second element requires the
litigant to establish that an extraordinary circumstance beyond his control
prevented him from complying with the applicable deadline.” Lugo-
Resendez, 831 F.3d at 344.
Concerning Moriano’s argument that his young age at the time the
removal order was issued constitutes extraordinary circumstances, the BIA
found that his young age may have justified his initial failure to file but not his
subsequent delay in filing. On appeal, Moriano—who was fifteen years old
when the BIA issued his final order of removal in 2011—states only that he
“was entirely dependent on his parents” and did not know about
opportunities to reopen his case until obtaining legal counsel in March 2025
at the age of twenty-nine. To justify equitable tolling, a petitioner must show
that extraordinary circumstances “stood in his way and prevented timely
filing.” Lugo-Resendez, 831 F.3d at 344 (citation modified). Without more
detail regarding how his young age at the time of his removal order prevented
him from filing for fourteen years, we cannot say that the BIA abused its
discretion in denying his motion to reopen. Prado-Majano v. Blanche, 176
F.4th 335, 342 (5th Cir. 2026).
Turning to Moriano’s other justification for equitable tolling, his lack
of knowledge regarding legal opportunities, Moriano has not shown that he
exercised reasonable diligence in pursuing his rights. “Ignorance of the law
and unfamiliarity with the legal process do not justify equitable tolling.”
Deras-Leon v. Barr, 841 F. App’x 642, 645 (5th Cir. 2020) (per curiam)
(unpublished) (citing United States v. Petty, 530 F.3d 361, 366 (5th Cir. 2008)
(per curiam)). Moriano argues that his circumstances merit equitable tolling
because he “was unaware that his marriage to a U.S. citizen provided a path
to reopening his removal proceedings” prior to March of 2025 when he
obtained legal counsel, at which time he acted swiftly to reopen his case.
However, Moriano points to no facts indicating that he exercised reasonable
5
Case: 25-60430 Document: 70-1 Page: 6 Date Filed: 10/27/2026
No. 25-60430
diligence to discover methods to reopen his removal proceedings in the
several years prior to obtaining counsel; thus, the Board did not abuse its
discretion in rejecting Moriano’s equitable tolling argument. See Rubio
Amaya v. Barr, 772 F. App’x 216, 217 (5th Cir. 2019) (per curiam)
(unpublished) (citing Gonzalez-Cantu v. Sessions, 866 F.3d 302, 305 (5th Cir.
2017)); Artiga Minera v. Bondi, No. 24-60455, 2020 WL 14050613, at *3 (5th
Cir. Aug. 6, 2022) (per curiam) (unpublished).
Absent further explanation as to how Moriano’s young age and lack of
knowledge caused his delayed filing, we cannot say that the Board “issue[d]
a decision that is capricious, irrational, utterly without foundation in the
evidence, based on legally erroneous interpretations of statutes or
regulations, or based on unexplained departures from regulations or
established policies.” Lugo-Resendez, 831 F.3d at 340 (citation modified).
B
Moriano also argues that the BIA erred in not reopening his
proceedings sua sponte. The decision to reopen proceedings sua sponte is
purely within the Board’s discretion. See Qorane, 919 F.3d at 912. At any
time, the BIA may “reopen or reconsider on its own motion any case in
which it has rendered a decision.” Id. at 911 (quoting 8 C.F.R. § 1003.2(a)).
The Board typically requires a petitioner to indicate exceptional
circumstances justifying use of the sua sponte authority to reopen. Id.
Generally, our court lacks jurisdiction to review the Board’s sua sponte
authority to reopen proceedings “because there is no legal standard against
which to judge that decision.” Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir.
2019) (citation modified). Accordingly, we cannot evaluate Moriano’s claim
that the Board should have found that he demonstrated “exceptional
circumstances.”
6
Case: 25-60430 Document: 70-1 Page: 7 Date Filed: 10/27/2026
No. 25-60430
In his reply brief, Moriano cites to two circumstances in which we
have found jurisdiction to review the Board’s exercise of sua sponte
authority: when a claim of legal error, such as a refusal to entertain equitable
tolling at all, or constitutional error is involved. See Rodriguez-Saragosa v.
Sessions, 904 F.3d 349, 355 (5th Cir. 2018); Mejia, 913 F.3d at 490. Moriano,
however, unconvincingly argues that his appeal falls under either exception.
Thus, these cases do not afford us a jurisdictional hook to assess Moriano’s
claim.
Because we lack jurisdiction to review the Board’s decision not to sua
sponte reopen Moriano’s proceedings, we dismiss that portion of Moriano’s
petition. See Garcia Morin, 152 F.4th at 631 (dismissing portion of petition
on same grounds).
IV
For the foregoing reasons, we DENY Moriano’s petition in part and
DISMISS the petition in part.
7