The BIA's denial of a motion to reopen is reviewed for an abuse of discretion. Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 2008); Chen v. Gonzales, 415 F.3d 151, 153 (1st Cir. 2005). The BIA's decision will be upheld "unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way."
“We review the ... denial of a motion to reopen for abuse of discretion.” Chen v. Gonzales, 415 F.3d 151, 153 (1st Cir.2005) (citation omitted). “The agency's resolution of such a motion will stand unless that resolution rests on a material error of law or a manifestly arbitrary exercise of judgment.”
None of the exceptions apply to him, and, therefore, the BIA did not abuse its discretion. See Chen v. Gonzáles, 415 F.3d 151, 153 (1st Cir. 2005). Arias has filed numerous motions to reopen with the BIA; the current one is a near-reproduction of his prior motions.
Thus, the BIA did not abuse its discretion in denying Córdoba's motion for reconsideration because it reached the correct legal conclusion that her motion to reopen was untimely.See Chen v. Gonzáles, 415 F.3d 151, 153 (1st Cir. 2005) ("An abuse of discretion exists 'where the BIA misinterprets the law, or acts either arbitrarily or capriciously.'"). To the extent that Córdoba's timeliness argument relies on the BIA's sua sponte power to reopen her removal proceedings despite her tardiness, we reiterate that we have no jurisdiction to review the BIA's use of that discretion.
The Board's denial of a motion to reopen is reviewed by this court for an abuse of discretion. Chen v. Gonzales, 415 F.3d 151, 153 (1st Cir.2005). "An abuse of discretion exists where the BIA misinterprets the law, or acts either arbitrarily or capriciously.'"
Assuming arguendo that equitable tolling applied to the one motion limit, the First, Third, and Eighth Circuits have held that the doctrine was inapplicable for other reasons, such as lack of due diligence. See Habchy v. Gonzales, 471 F.3d 858, 864-65 (8th Cir.2006); Chen v. Gonzales, 415 F.3d 151, 154, 154 n. 3 (1st Cir.2005); Luntungan, 449 F.3d at 557; Jobe v. INS, 238 F.3d 96, 100 (1st Cir.2001) (en banc). The Sixth Circuit has applied the doctrine of equitable tolling to otherwise time-barred motions to reopen.
We need not reach the issue of whether equitable tolling is even available to excuse a late filing in the immigration context. See Boakai v. Gonzales, No. 05-1961, 2006 WL 1101616, at *4 n. 2, 447 F.3d 1, 3 n. 2 (1st Cir. April 27, 2006); Chen v. Gonzales, 415 F.3d 151, 154 n. 3 (1st Cir. 2005) (noting that this question was left open by Jobe v. INS, 238 F.3d 96 (1st Cir. 2001) (en banc), and declining to resolve it). Joumaa did not argue equitable tolling to the BIA and therefore failed to exhaust his administrative remedies.
This court has not yet decided whether the BIA has the power to excuse late filing on the basis of equitable tolling. See Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc); see also Chen v. Gonzales, 415 F.3d 151, 154 n. 3 (1st Cir. 2005) (noting the issue remains unresolved). Such due diligence is not present here.
The argument is therefore waived. See Chen v. Gonzales, 415 F.3d 151, 154 (1st Cir. 2005). b. Timing of Withdrawal of Visa Petition