Portal:United States Court of Appeals for the Fifth Circuit

“ But due diligence and extraordinary circumstances are related inquiries: an alien’s due diligence is considered in light of his circumstances. Thus, assessing due diligence necessarily includes a temporal component, which involves determining whether and when a purported extraordinary circumstance occurred. ”

“ Lugo-Resendez, 831 F.3d at 344. An intervening legal change can constitute an extraordinary circumstance. See Londono-Gonzalez, 978 F.3d at 968; accord Guerrero-Lasprilla, 822 F. App’x at 256–57. Ovalles contends that the 90-day time limit for filing his second motion to reopen should be tolled until he learned of the Lugo-Resendez decision in December 2016. But this court recently concluded that Lugo-Resendez did not constitute an intervening change in binding precedent that satisfies the “extraordinary circumstance” element. ”

“ Petitioner Ruben Ovalles asserts on appeal that the Board of Immigration Appeals (the “Board”) erroneously failed to apply equitable tolling to his motion to reopen in light of Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) . After considering the record, we deny Ovalles’s petition for review. I. BACKGROUND This case comes back to the Fifth Circuit upon remand from the Supreme Court. See Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 2018) , vacated and remanded 140 S. Ct. 1062 (2020) . The facts are undisputed. ”