U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204/

DHS/ICE Office of Chief Counsel - PIS

27991 Buena Vista Blvd
Los Fresnos, TX 78566

Name: LUGO-RESENDEZ, SERGIO

A 034-450-500

Date of this notice: 11/21/2016

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

bonrtL Ct1AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Sergio Lugo-Resendiz, A034 450 500 (BIA Nov. 21, 2016)

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

Goodwin, Jodilyn, Esq.

Law Office of Jodi Goodwin
1322 East Tyler Avenue
Harlingen, TX 78550

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - PIS

27991 Buena Vista Blvd
Los Fresnos, TX 78566

Name: LUGO-RESENDEZ, SERGIO

A 034-450-500
Date of this notice: 11/21/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

DOWtL ctl.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Guendelsberger, John
Lulsegef.,
Userteam: !JQ_cj(_t

Cite as: Sergio Lugo-Resendiz, A034 450 500 (BIA Nov. 21, 2016)

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

LUGO-RESENDEZ, SERGIO
CALLE 19 ENTRE BUSTAMANTE Y
HERRERA
HEROICA MATAMOROS, TAMPS, MEXICO

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A034 450 500 - Los Fresnos, TX

Date:

In re: SERGIO LUGO-RESENDEZ

.JP\/.
........

2 1

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Ll.d

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Jodi Goodwin, Esquire
APPLICATION: Termination of proceedings
This case was last before us on November 6, 2014, when we affirmed the hnmigration
Judge's decision, dated August 7, 2014, denying the respondent's motion to reopen, finding it
untimely.
The respondent thereafter filed a petition for review to the United States Court of Appeals for
the Fifth Circuit. On July 28, 2016, the Court ruled that the deadline for filing a motion to
reopen under 8 U.S.C. 1229a(c)(7) is subject to equitable tolling. The Court remanded this
matter for reconsideration of the case to determine whether equitable tolling should apply to the
delay between the date of the respondent's removal order and the date he filed the motion to
reopen. 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).
In 2002, the respondent was convicted of possession of a controlled substance. In 2003, he
was found removable and ordered removed for having been convicted of an aggravated felony
involving drug trafficking. In 2006, the Supreme Court issued Lopez v. Gonzalez, 549 U.S. 47
(2006), which held that possession of a controlled substance does not constitute an aggravated
felony. This potentially rendered the respondent eligible for termination of proceedings and/or
cancellation of removal. However, the respondent did not file the motion to reopen until 2014.
Some fact-finding will be necessary to determine the applicability of equitable tolling. The
Board of Immigration Appeals has limited fact-finding ability on appeal. See 8 C.F.R.
1003.l(d)(3); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). Consequently, this matter will be
remanded to the Immigration Judge for reconsideration and entry of a new decision on the issue
of equitable tolling. On remand, as appropriate, the Immigration Judge should entertain the
respondent's motion to terminate proceedings and/or an application for cancellation of removal,
if the Department of Homeland Security opts to amend the Notice to Appear.

Cite as: Sergio Lugo-Resendiz, A034 450 500 (BIA Nov. 21, 2016)

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

IN REMOVAL PROCEEDINGS

..

A034 450 500

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and entry of a new decision.

2
Cite as: Sergio Lugo-Resendiz, A034 450 500 (BIA Nov. 21, 2016)

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

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