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    Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened and terminated proceedings upon finding the respondent merited equitable tolling of the filing deadline. The Board noted that the respondent had been a lawful permanent resident since 1973, that he suffered from mental illness, and that he acted with reasonable diligence following the issuance of the Fifth Circuit’s decision in Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016). The decision was issued by Member Molly Kendall Clark and was joined by Member John Guendelsberger and Member Edward Kelly.

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    Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)

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    Immigrant & Refugee Appellate Center, LLC
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    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened and terminated proceedings upon finding the respondent merited equitable tolling of the filing deadline. The Board noted that the respondent had been a lawful permanent resident since 1973, that he suffered from mental illness, and that he acted with reasonable diligence following the issuance of the Fifth Circuit’s decision in Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016). The decision was issued by Member Molly Kendall Clark and was joined by Member John Guendelsberger and Member Edward Kelly.

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    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened and terminated proceedings upon finding the respondent merited equitable tolling of the filing deadline. The Board noted that the respondent had been a lawful permanent resident since 1973, that he suffered from mental illness, and that he acted with reasonable diligence following the issuance of the Fifth Circuit’s decision in Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016). The decision was issued by Member Molly Kendall Clark and was joined by Member John Guendelsberger and Member Edward Kelly.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    902 views3 pages

    Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened and terminated proceedings upon finding the respondent merited equitable tolling of the filing deadline. The Board noted that the respondent had been a lawful permanent resident since 1973, that he suffered from mental illness, and that he acted with reasonable diligence following the issuance of the Fifth Circuit’s decision in Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016). The decision was issued by Member Molly Kendall Clark and was joined by Member John Guendelsberger and Member Edward Kelly.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 3
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    The respondent filed a motion to reopen and terminate removal proceedings based on a change in case law regarding his removability charges.

    The respondent was found removable for being convicted of two or more crimes involving moral turpitude.

    The Fifth Circuit held in Gomez-Perez v. Lynch that a violation of section 22.01(a)(1) of the Texas Penal Code is categorically not a crime involving moral turpitude.

    U.S.

    Department,/"" Justice
    '
    (
    •

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office ofthe Clerk

    5107 Leesburg Pike, Suite 2000


    Falls Church, Virginia 22041

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


    Fleury, Katrina L. OHS/ICE Office of Chief Counsel - PIS
    Texas RioGrande Legal Aid 27991 Buena Vista Blvd
    316 S. Closner Blvd. Los Fresnos, TX 78566
    Edinburg, TX 78539

    Name: RINCON-GARCIA, SAUL A 034-338-426

    Date of this notice: 11/27/2017

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

    Sincerely,

    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Guendelsberger, John
    Kelly, Edward F.
    Kendall Clark, Molly

    B<t>;;�lOH:A
    Userteam: Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index

    Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)
    I
    . .

    lJ.S. Department of Jusuce Decision 01 the Board oflmrnigration Appeals


    · .,

    Executive Office for Immigration Review

    Falls Church, Virginia 22041

    File: A034 338 426-Los Fresnos, TX Date: NOV 2 7 2017

    In re: Saul RINCON-GARCIA a.k.a. Saul Garcia

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


    IN REMOVAL PROCEEDINGS

    MOTION

    ON BEHALF OF RESPONDENT: Katrina L. Fleury, Esquire

    ON BEHALF OF DHS: Ariel Chino


    Assistant Chief Counsel

    APPLICATION: Reopening; termination

    This matter1 was last before the Board on July 29, 2015, when we dismissed the respondent's
    appeal from the Immigration Judge's decision denying his application for cancellation of removal
    · for certain permanent residents pursuant to section 240A(a) of the Immigration and Nationality
    Act, 8 U.S.C. § 1229a(a). The respondent has now filed an untimely motion to reopen and
    terminate. The Department of Homeland Security (DHS) opposes the motion. The motion to
    reopen will be granted and the proceedings will be terminated without prejudice.

    The respondent was found removable as charged under section 237(a)(2)(A)(ii) of the Act,
    8 U.S.C § 1227(a)(2)(A)(ii), as an alien who, at any time after admission, was convicted of two or
    more crimes involving moral turpitude (U at 1, Feb. 25, 2015). The respondent requests that the
    proceedings be reopened because he is no longer removable as charged in light of the United States
    Court of Appeals for the Fifth Circuit's holding in Gomez-Perez v. Lynch, 829 F.3d 323 (2016).
    The respondent acknowledges that his motion is untimely but requests equitable tolling of the
    filing deadline. The DHS opposes the motion, arguing that equitable tolling is not warranted.

    To be allowed equitable tolling, the respondent must establish: (1) that he had been pursuing
    his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
    timely filing of the motion to reopen. See Lugo-Resendez v. Lynch, 831 F.3d 337, 343-45

    (5th Cir. 2016); see also Mata v. Lynch, 135 S. Ct. 2150, 2155-56 (2015).

    We conclude that the respondent has demonstrated that equitable tolling of the filing deadline
    for his motion to reopen is warranted. In light of the unique factors presented by this case,
    including the fact that the respondent suffers from severe mental illness, the lack of resources he
    faced following his removal, and the actions he took upon learning of the Fifth Circuit's holding

    1 These removal proceedings were initiated upon the filing of a Notice to Appear (NTA) filed with
    the Immigration Court on December 10, 2014. The respondent was subsequently placed in
    removal proceedings pursuant to an NTA filed with the Immigration Court on March 7, 2017. The
    respondent has filed an appeal from the Immigration Judge's decision in his second removal
    proceedings. That appeal is addressed in a separate decision.

    Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)
    A034 338 426

    in Gomez-Perez v. Lynch, we find that the respondent has demonstrated both the existence of
    exceptional circumstances and that he has exercised due diligence such that equitable tolling is
    warranted. See Lugo-Resendez v. Lynch, 831 F.3d at 344-45 (stating that the equitable tolling
    standard should not be applied too harshly and that, in assessing whether equitable tolling is
    warranted, the Board "should give due consideration to the reality that many departed aliens are

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


    poor, uneducated, unskilled in the English language, and effectively unable to follow
    developments in the American legal system").

    The respondent, who was admitted to the United States as a lawful permanent resident in 1973,
    has several convictions for assault pursuant to 22.0l(a)(l) of the Texas Penal Code and one
    conviction for aggravated assault with a deadly weapon pursuant to section 22.02(a)(2) of the
    Texas Penal Code. In Gomez-Perez v. Lynch, 829 F.3d 323, the Fifth Circuit held that a violation
    of section 22.0l(a)(l) of the Texas Penal Code is categorically not a crime involving moral because
    the statute is overbroad. Because the respondent is not an alien who, at any time after admission,
    was convicted of two or more crimes involving moral turpitude, he is not removable under section
    237(a)(2)(A)(ii) of the Act. Accordingly, we grant the respondent's motion to reopen and the
    proceedings will be terminated without prejudice. The following orders will be entered.

    ORDER: The respondent's motion to reopen is granted.

    FURTHER ORDER: The removal proceedings are terminated.

    2
    Cite as: Saul Rincon-Garcia, A034 338 426 (BIA Nov. 27, 2017)

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