Case: 18-60432      Document: 00515092326         Page: 1    Date Filed: 08/26/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                    No. 18-60432
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                      August 26, 2019
                                                                         Lyle W. Cayce
ANIL KUMAR,                                                                   Clerk


                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 947 849


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Anil Kumar petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying his motion to reopen removal proceedings
based upon the ineffective assistance rendered by his prior attorney. Kumar
conceded before the BIA that his motion to reopen was untimely. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). The BIA denied the motion as untimely and held that
Kumar was not entitled to equitable tolling; in the alternative, the BIA held


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-60432     Document: 00515092326     Page: 2   Date Filed: 08/26/2019


                                  No. 18-60432

that Kumar had failed to satisfy the requirements set forth in Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). We review the denial of Kumar’s
motion to reopen under a highly deferential abuse-of-discretion standard. See
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
      Equitable tolling of the § 1229a(c)(7)(C)(i) deadline is warranted only if
the litigant establishes “(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 v. Lynch, 831 F.3d 337, 343-44 (5th Cir. 2016)
(internal quotation marks and citation omitted).           Whether Kumar has
exercised reasonable diligence constitutes a factual finding.        See Diaz v.
Sessions, 894 F.3d 222, 225-26 (5th Cir. 2018). We review such a finding using
the substantial-evidence test, and we may not overturn it “unless the evidence
compels a contrary conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009).
      As Kumar states that he became aware of the ineffectiveness at issue
following the BIA’s May 2016 decision but admits that he did not begin to
prepare his motion to reopen until after our denial of his first petition for
review in October 2017, he fails to show that the BIA’s reasonable-diligence
finding is unsupported by substantial evidence. See Gomez-Palacios, 560 F.3d
at 358. Although Kumar suggests that the unavailability of the administrative
record coupled with his change of attorneys in June 2016 should be considered
an extraordinary circumstance that warrants equitable tolling, he failed to
exhaust this issue before the BIA, and we therefore lack jurisdiction to consider
it. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009).
      Kumar fails to show that the BIA abused its discretion by denying his
motion to reopen as untimely and not subject to equitable tolling. See Zhao,
404 F.3d at 303.     Accordingly, we need not address Kumar’s alternative



                                        2
    Case: 18-60432   Document: 00515092326    Page: 3   Date Filed: 08/26/2019


                               No. 18-60432

argument that the BIA erred by holding that he failed to satisfy the Lozada
requirements.
     The petition for review is DENIED.




                                    3